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3rd Cir. Says Market Surveys are Not Advertisements under TCPA

by Scott J. Hyman |

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

3rd Cir. Says Fax Requesting Completion of Customer Satisfaction Survey Was Not a “Solicitation” or Pretext for Same under the TCPA

by Scott J. Hyman |

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

District Court (Cal.) Certifies TCPA Telemarketing Class, Finds That Consent Issues Could Be Determined on Class-wide Basis

by Scott J. Hyman |

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

District Court (Cal.) Says Pre-Recorded Calls Were “Marketing”

by Scott J. Hyman |

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

District Court (Nev.) Finds TCPA Claim Properly Pleaded Against Text Transmitter Service

by Scott J. Hyman |

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

District Court (La.) Says Informational Texts Did Not Violate the TCPA

by Scott J. Hyman |

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

District Court (Cal.) Says Text Messages Were Not Advertisements Under the TCPA

by Scott J. Hyman |

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

District Court (Cal.) Says Mere Passage of Time Does Not Revoke TCPA Consent in Text Message Case, But Scope of Such Consent Was a Triable Issue of Fact

by Scott J. Hyman |

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

9th Cir. Says that Consumer Consented to TCPA Calls

by Scott J. Hyman |

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

District Court (Cal.) Refuses to Strike TCPA Complaint’s Listing of a Host of Other Consumer Complaints and Sister-State Actions; Declines to Strike Class Allegations as “Fail-Safe” Class

by Scott J. Hyman |

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

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