TCPA

In Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264, at *3–4 (9th Cir. Aug. 8, 2023), the Court of Appeals for the 9th Circuit held that to be a prerecorded voice message under the TCPA, the message must be audible.  Prerecorded text messages which have no sound component are not voice messages within the statute's meaning even… Read More

In Scherrer v. FPT Operating Co., LLC, No. 19-CV-03703-SKC, 2023 WL 4660089, at *2–4 (D. Colo. July 20, 2023), Magistrate Crews denied a motion to dismiss a TCPA case addressing whether the Five9 system was an ATDS. The Supreme Court then continued in Footnote 7 to reject Duguid's argument that the patent cited by the Amici Curiae brief (and thus… Read More

In Hall v. Smosh Dot Com, Inc., No. 22-16216, 2023 WL 4281815 (9th Cir. June 30, 2023), the Court of Appeals for the 9th Circuit found Art. III standing for a phone subscriber suing under the TCPA for a DNC violation. Hall sued Dot Com and Mythical Entertainment, LLC for sending five text messages to a cell phone number that… Read More

In Credit One Bank, N.A. v. Lieberman, No. 22-1871, 2023 U.S. App. LEXIS 14853, at *1-9 (3d Cir. June 15, 2023), the Court of Appeals for the 3rd Circuit addressed re-allocation of arbitrator's fees and attorneys' fees based on an arbitrator's conclusion that TCPA claimant had manufactured the claim. Pursuant to a clause in the agreement, Adam instituted arbitration, claiming… Read More

In Pascal v. Concentra, Inc., No. 22-15033, 2023 U.S. App. LEXIS 8858, at *2 (9th Cir. Apr. 13, 2023), the 9th Circuit Court of Appeals summarily affirmed a TCPA dismissal. Pascal's argument that Concentra violated the TCPA when it messaged him using Textedly, an online text-messaging service, is foreclosed by our decision in Borden v. eFinancial, LLC, 53 F.4th 1230… Read More

In Snyder v. Landcar Mgmt. LTD, No. CV-22-00705-PHX-DLR, 2023 U.S. Dist. LEXIS 49695, at *5-7 (D. Ariz. Mar. 23, 2023), Judge Rayes found that Ringless Voicemail Messages were "calls" under the TCPA. The Ninth Circuit defines a call under the TCPA as "to communicate with or try to get into communication with a person by telephone." Satterfield v. Simon &… Read More

In Mattson v. New Penn Fin., LLC, No. 21-35795, 2023 U.S. App. LEXIS 7070, at *1-2 (9th Cir. Mar. 23, 2023), the Court of Appeals reviewed a District Court's denial of class certification in a TCPA case because of factual questions amongst the class as to whether the residential lines were for residential or business use.  But, after the District… Read More

In Williams v. Pillpack LLC, No. 3:19-cv-05282-DGE, 2023 U.S. Dist. LEXIS 46640, at *5-9 (W.D. Wash. Mar. 20, 2023), Judge Estudillo approved a reverse-lookup class administration plan. PillPack objects to Mr. Williams's proposed notice plan because "(1) the reverse lookup process is an inaccurate and unreliable methodology to identify class members; and (2) Plaintiff's proposed process lacks steps to verify… Read More

In Chase v. Kia Motors Am., Inc., No. 22-cv-09082-JCS, 2023 U.S. Dist. LEXIS 31208, at *1-2 (N.D. Cal. Feb. 24, 2023), Judge Spero concluded that he did not have jurisdiction to hear a federal claim raised for the first time in an arbitration referred by a state court.  Judge Spero summarized the case as follows: Defendant Hyundai Capital America d/b/a… Read More

In Barton v. JMS Assoc. Mktg., LLC, No. 21-35836, 2023 U.S. App. LEXIS 3593, at *3-4 (9th Cir. Feb. 15, 2023), the Court of Appeals for the 9th Circuit remanded a matter to allow exposure for unanswered as well as answered calls. 47 U.S.C. § 227(c)(5) provides a private right of action to any person who receives more than one… Read More

In Barton v. Delfgauw, No. 3:21-cv-05610-JRC, 2023 U.S. Dist. LEXIS 21804, at *11-14 (W.D. Wash. Feb. 7, 2023), Judge Creatura allowed a TCPA claim to proceed for standing purposes despite a defendant's arguments that the claims were manufactured and that the Plaintiff suffered no invasion of privacy. Defendants also argue that plaintiff lacks Article III standing to bring this TCPA… Read More

In Bank v. Icot Holdings, No. 18-CV-02554 (AMD)(PK), 2023 U.S. Dist. LEXIS 676, at *15-19 (E.D.N.Y. Jan. 1, 2023), Judge Kuo denied class certification in a TCPA class based on ascertainability grounds.  The Plaintiff's claim sounded as a "customary user" of a cell phone for which his mother was the subscriber and had been a member of a previous class… Read More

In Samson v. United Healthcare Servs. Inc., No. 2:19-cv-00175, 2022 U.S. Dist. LEXIS 229000, at *2-4 (W.D. Wash. Dec. 20, 2022), Judge Pechman lifted her previous stay of the case. The procedural history is as follows: Plaintiff Frantz Samson filed this suit against Defendant, United Healthcare Services ("United"), in 2019 alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47… Read More

In Brickman v. United States, No. 21-16785, 2022 U.S. App. LEXIS 35286, at *4-6 (9th Cir. Dec. 21, 2022), the Court of Appeals found no ATDS was used, and found no basis to distinguish its Borden decision. This case arises from the district court's dismissal with prejudice of Colin R. Brickman's class-action claim under the Telephone Consumer Protection Act (TCPA), 47 U.S.C.… Read More

In Weisbein v. Allergan, Inc., No. 8:20-cv-00801-SSS-ADSx, 2022 U.S. Dist. LEXIS 217844, at *4-7 (C.D. Cal. Dec. 2, 2022), Judge Sykes granted summary judgment to a TCPA defendant in text message class action. The crux of Plaintiff's claims is that Defendants sent automated text messages that violated the TCPA, specifically § 227(b)(1)(A) of the TCPA, which prohibits calls made using… Read More

In BPP v. CaremarkPCS Health, L.L.C., No. 21-3791, 2022 U.S. App. LEXIS 31586 (8th Cir. Nov. 16, 2022), the Court of Appeals clarified the rules for “unsolicited advertisements” under the TCPA fax rules. We disagree with BPP's proposed interpretation of unsolicited advertisement. HN3 The TCPA does not ban all faxes that contain information about commercial goods or services, as BPP… Read More

In Risher v. Adecco Inc., No. 19-cv-05602-RS, 2022 U.S. Dist. LEXIS 209676 (N.D. Cal. Nov. 18, 2022), Judge Seaborg dismissed an evolving theory that text messages can be a pre-recorded voice under the TCPA. In the absence of express consent, section 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, and its implementing regulations at 47 CFR § 64.1200(a)(2), prohibit non-emergency calls… Read More

In Yahoo Inc. v. Nat'l Union Fire Ins. Co., No. S253593, 2022 Cal. LEXIS 6887, at *2-3 (Nov. 17, 2022), the California Supreme Court, on certification of the issue from the Court of Appeals for the 9th Circuit, found that TCPA claims were covered under Yahoo!'s manuscript CGL policies. The Court summarized: Privacy injuries that involve the right of seclusion… Read More

In Borden v. Efinancial, Ltd. Liab. Co., No. 21-35746, 2022 U.S. App. LEXIS 31613, at *3-4 (9th Cir. Nov. 16, 2022), the Court of Appeals for the 9th Circuit found that to be an ATDS, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list… Read More

In Beard v. John Wester Chevrolet, LLC, No. 5:21-CV-173-D, 2022 U.S. Dist. LEXIS 204379, at *7-9 (E.D.N.C. Nov. 9, 2022), Judge Dever found that ringless voicemail technology is a 'call' under the TCPA. Although only a few courts have addressed whether a ringless voicemail is a call under the TCPA, every court that has addressed this question has held that… Read More