Pleading

In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer.  Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More

In Duguid v. Facebook, Inc., 2017 WL 635117, at *5 (N.D.Cal., 2017), Judge Tygar dismissed a TCPA Plaintiff's First Amended Complaint attempting to plead use of an ATDS. Here, however, Plaintiff has again failed to allege the existence of such a system. At best, his allegations are conclusory, given that he merely asserts that Facebook “maintains a database of phone… Read More

In Ewing v. SQM US, Inc., 2016 WL 5846494, at *2–3 (S.D.Cal., 2016), Judge Bencivengo dismissed a TCPA claim because the alleged harm -- a charge for the call - would have been incurred whether the call was properly placed (manually) or improperly placed (autodialed).  Accordingly, it did not confer "concrete injury" sufficient to confer Article III standing. The only allegation in… Read More

In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a "pause" to demonstrate absence of human intervention. Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the… Read More

In Smith v. Aitima Medical Equipment, Inc., here,  Judge Birotte dismissed a TCPA claim based on lack of Art. III standing.  In Szumilas v. CBE Group, LLC., here, however, Judge Birotte found Art. III standing in a TCPA case.  The difference between the two outcomes seemed to be the volume of the calls.   Read More

In Telephone Science Corporation v. Asset Recovery Solutions, LLC, 2016 WL 4179150, at *5 (N.D.Ill., 2016), Judge St. Eve found adequate standing in a TCPA case. TSC operates a service called “Nomorobo,” designed to help consumers avoid incoming computerized telephone calls that the Federal Trade Commission (“FTC”) refers to as “robocalls”—calls made with either an automatic telephone dialing system (“ATDS”)… Read More

In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness. Defendant contends that Plaintiff's sole allegation regarding Defendant's use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the… Read More

In Weisberg v. Stripe, Inc., 2016 WL 3971296, at *4–5 (N.D.Cal., 2016), Judge Tigar dismissed a TCPA case at the pleadings stage for wont of pleading an ATDS. Plaintiff further relies on the case of Harnish v. Frankly Co., in which the court held that allegations claiming that text messages were sent “en masse,” had “generic” and “impersonal” content, and… Read More

In Klein v. Just Energy Group, Inc., 2016 WL 3539137, at *2 (W.D.Pa., 2016), Judge Conti granted summary judgment to an energy company who's debt collectors placed wrong-party calls to Klein over Klein's Google VoiP.    Because Klein's VoIP number had been erroneously recorded as the number for P.S., Commerce Energy, Inc. d/b/a Just Energy provided Klein's VoIP number to Collectcents… Read More

In Izsak v. Draftkings, Inc., 2016 WL 3227299, at *3-5 (N.D.Ill., 2016), Judge Wood found that a TCPA Plaintiff pleaded enough to get past the pleadings stage. This Court agrees with the view that where a fact—here, use of an ATDS—is itself an element of the claim, “it is not sufficient to recite that fact verbatim without other supporting details.”… Read More

In Waterbury v. A1 Solar Power Inc., 2016 WL 3166910, at *3 (S.D.Cal., 2016), Judge Anelo found that a TCPA plaintiff had not adequately pleaded the use of an ATDS. Defendants contend Plaintiff Bell has not stated a claim under the TCPA because she has not adequately alleged that Defendants used an ATDS. Plaintiff Bell alleges Defendants violated a provision… Read More

In Lundstedt v. Deutsche Bank National Trust Company, 2016 WL 3101999, at *5 (D.Conn., 2016), Judge Meyer allowed a TCPA case past the pleading stage where the Plaintiff could allege facts supporting the use of an ATDS. Plaintiff did state at oral argument, however, that “you could tell it was a computer because you would be waiting and waiting and… Read More

In Oleos v. Bank of America, 2016 WL 3092194, at *2 (S.D.Cal., 2016), the District Court found that a TCPA Plaintiff pleaded enough. Courts facing a motion to dismiss on the grounds that the allegations of use of an ATDS are insufficient have taken two approaches. Maier, at *3. Under the first approach, courts allow a plaintiff to make minimal allegations… Read More

 In Brown v. Collections Bureau of America, Ltd., 2016 WL 1734013, at *1-2 (N.D.Cal., 2016), Judge Seaborg allowed a TCPA class action past the pleading stage based on, well, almost nothing.In this putative class action, named plaintiff Malik Brown complains that defendant Collections Bureau of America, Ltd. has violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”).… Read More

In Stavrinides v. Pacific Gas and Electric Company, 2016 WL 1598744, at *2 (N.D.Cal., 2016), Judge Alsup held: As an initial matter, plaintiff has not alleged that he was charged for the call, which he must allege to state a claim under the TCPA. Moreover, the complaint does not, in anything other than conclusory fashion, allege that PG&E used an… Read More

In Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D.Ohio, 2016), Judge Nugent held that a TCPA Plaintiff must plead some threshold facts to demonstrate that an ATDS was used. Review of TCPA cases confirms that district courts are split as to the sufficiency of a plaintiff's pleadings on the ATDS issue. See Aikens, supra; Padilla v.… Read More

In Saragusa v. Countrywide, 2016 WL 1059004, at *4 (E.D.La., 2016), Judge Vance found that a TCPA plaintiff had pleaded no facts suggesting that the calls were not manually dialed. The TCPA defines the “automatic telephone dialing system” as equipment capable of “stor[ing] or produc[ing] telephone numbers to be called, using a random or sequential number generator [and] dial[ing] such… Read More

In Kaplinsky v. Robert Wood Johnson University Hospital, 2016 WL 885049, at *2-3 (D.N.J., 2016), Judge Thompson found that a TCPA Plaintiff need plead that he was charged for the call in order to state a claim. But as to Plaintiff's second argument, the Court finds that it is necessary to grant reconsideration on this point. Whether a plaintiff must… Read More

In Fitzhenry v. Career Education Corporation, 2016 WL 792312, at *3 (N.D.Ill., 2016), Judge Darrah held that a TCPA Plaintiff properly pleaded derivative liability in a TCPA class action, and held that a professional TCPA Plaintiff could still be a proper class representative.  Judge Darrah held that the facts as pleaded adequately pleaded derivative liability. Defendants argue that Plaintiff has not… Read More

In Hensarling v. Wells Fargo Bank, N.A., 2016 WL 775950, at *3-4 (E.D.Cal., 2016), Judge Mueller held that a TCPA Plaintiff must plead more that the definition of an ATDS -- it must plead that it was used somehow, as in the existence of pauses or clicks. Here, plaintiffs' TCPA claim can advance only if plaintiffs have alleged sufficient facts… Read More