Solicitation of Goods & Services

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In Weister v. Vantage Point AI, LLC, No. 8:21-cv-1250-SDM-AEP, 2022 U.S. Dist. LEXIS 139642, at *2-5 (M.D. Fla. Aug. 3, 2022), Judge Merryday denied summary judgment to a ringless voicemail message provider whose telemarketing messages were challenged under the TCPA. The facts were as follows: The following facts are either undisputed or construed in Weister's favor. VantagePoint sells "financial, technical… Read More

In Massaro v. Beyond Meat, Inc., No. 3:20-cv-00510-AJB-MSB, 2021 U.S. Dist. LEXIS 46980, at *15-20 (S.D. Cal. Mar. 12, 2021), Judge Battaglia allowed a TCPA claim to proceed against PETA because their texts endorsing Beyond Meat constituted advertisements. Here, PETA appears to argue there is a blanket exemption for non-profit organizations, (Doc. No. 30-1 at 19-22), while Plaintiff contends PETA's… Read More

In Mauthe v. Optum Inc., No. 18-2894, 2019 U.S. App. LEXIS 15742 (3d Cir. May 28, 2019), the Court of Appeals for the Third Circuit held that market surveys were not pretextual advertisements under the TCPA. Commercial entities conducting research sometimes do so by sending faxes. Under Mauthe's theory, these firms would violate TCPA's prohibition on the sending of an… Read More

In Mauthe v. Nat'l Imaging Assocs., No. 18-2119, 2019 U.S. App. LEXIS 11232 (3d Cir. Apr. 17, 2019), the Court of Appeals for the Third Circuit found that a fax was not a solicitation for goods and services. Moreover, the fax did not tell Mauthe that he [*7]  could purchase healthcare management services from defendant or direct him to a website… Read More

In McCurley v. Royal Seas Cruises, Inc., No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 52173 (S.D. Cal. Mar. 27, 2019), Judge Bashant certified a TCPA-telemarketing class. In the wake of Van Patten and McKesson, it is clear that the evidence Royal offers as evidence of consent "strongly affects" the Court's predominance analysis. McKesson, 896 F.3d at 932; see also Makaron, 324… Read More

In Chinitz v. NRT W., Inc., No. 18-cv-06100-NC, 2019 U.S. Dist. LEXIS 27134 (N.D. Cal. Feb. 20, 2019), Judge Cousins denied a motion to dismiss a TCPA class action that asserted that pre-recorded calls violated the TCPA. Applying the prerecorded message rule turns on the purpose of the message, "not on the caller's characterization of the call." Chesbro, 705 F.3d at… Read More

In Bauman v. Saxe, No. 2:14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 23351 (D. Nev. Feb. 13, 2019), Judge Boulware found that a TCPA plaintiff stated a claim against Twilio, who allegedly transmitted telemarking text messages in violation of the TCPA.  The facts alleged were as follows: The Saxe Defendants are: David Saxe; David Saxe Productions, Inc.; David Saxe Productions, LLC; Saxe Management,… Read More

In Suriano v. French Riveria Health Spa, Inc., Civ. No. 18-9141, 2018 WL 6702749 (E.D. La. December 20, 2018), Judge Lemmon found that text messages were information only and not advertisements. Therefore, the sender did not violate the TCPA. At the outset, messages one, two, and five are plainly informational in nature. The first (sent the day after plaintiff joined)… Read More

In Phan v. Agoda Company PTE, Ltd., 2018 WL 6591800, at *4–8 (N.D.Cal., 2018), Judge Freeman granted summary judgment against a TCPA plaintiff, finding that text messages that she received were not advertisements. Though a claim under the TCPA has three elements, Agoda does not dispute that Phan satisfies the first two elements of the TCPA claim—that Agoda sent text… Read More

In Walintukan v. SBE Entertainment Group., LLC., 2018 WL 2357763, at *3 (N.D.Cal., 2018), Judge Tigar denied a TCPA defendant's summary judgment motion. Defendants argue that “the text messages involved in this case fall squarely within [the] scope of consent test articulated by the Court of Appeals in Van Patten — both from a temporal and a subject matter standpoint.”… Read More

In Fober v. Management and Technology Consultants, LLC, 2018 WL 1526365, at *3 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held that a patient consented to receive autodialed calls. Plaintiff argues, though, that her consent extended only to calls concerning the quality of Health Net's services and not to calls concerning the quality of Dr. Schwartz'… Read More

In Moser v. Health Insurance Innovations, Inc., 2018 WL 325112, at *8–9 (S.D.Cal., 2018), Judge Hayes found that a TCPA Plaintiff had adequately pleaded agency allegations against a host of defendants allegedly involved in health insurance telemarketing sales.  Judge Hayes then refused to strike a host of allegations made in the Complaint regarding other complaints and sister-state actions. Allegations concerning the… Read More

In MacKinnon v. Hof's Hut Restaurants, Inc.,  2017 WL 5754308, at *2 (E.D.Cal., 2017), the district court found that a confirming text with a "see specials" link was not an "advertisement" under the TCPA. Defendant's website did not constitute advertising or telemarketingsince it just informed plaintiff that joining a rewards program would result in freerewards points). Also, messages “whose purpose is… Read More

In Jones v. Royal Administration Services, Inc., --F.3d --, 2017 WL 3401317, at *6 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit said that federal common law decides agency issues in TCPA telemarketing cases. Royal does not challenge whether there is sufficient evidence in the record to create a genuine issue of material fact as to whether AAAP's… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 2861671 (E.D. Mo. 2017), Judge Webber held that there could be due process limitations on the amount of damages recoverable in a TCPA class action. In their Motion for Partial Summary Judgment on the Issue of Damages [ECF No. 239], Plaintiffs ask the Court to determine the amount of damages to be… Read More

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 Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc.,  2017 WL 461002, at *4 (2d Cir. 2017), the Court of Appeals for the Second Circuit put some meat on the bones of whether a fax offering a "free seminar" triggers the TCPA. Requiring plaintiffs to plead specific facts alleging that specific products or services would… Read More

In S & A Tire and Auto, Inc. v. A.U.L. Corp., 2017 WL 345078, at *2 (E.D.Mo., 2017), Judge Nocell refused to dismiss a TCPA blast-fax case on the grounds that the invitation for on-line participation constituted advertisement under the TCPA. When viewing the facts pled by plaintiff in the light most favorable to plaintiff, they are sufficient to state… Read More

In Smith v. Blue Shield of California Life & Health Ins. Co., 2017 WL 167451, at *7–10 (C.D.Cal., 2017), Judge Carney dismissed a TCPA claim against Blue Shield who placed informational calls to its patient. The Ninth Circuit has stated that courts should evaluate the content of purported telemarketing “with a measure of common sense.” Chesbro v. Best Buy Stores,… Read More

In Reardon v. Uber Technologies, Inc., 2015 WL 4451209 (N.D.Cal., 2015), Judge Tigar dismissed part of a TCPA class action filed against Uber for recruitment texts to potential drivers. Here, Uber argues that the text messages it allegedly sent cannot be said to “constitute telemarketing” or to “include or introduce an advertisement” because the texts do not promote its provision… Read More

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