In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2020 U.S. Dist. LEXIS 2800, at *11-12 (D. Mass. Jan. 8, 2020), Judge Gorton granted summary judgment on a TCPA "re-assigned" number case, permitting a "reasonable reliance" defense. The First Circuit Court of Appeals has not addressed this issue and the district courts in this Circuit and other circuits that… Read More
In Cordoba v. DIRECTV, LLC, No. 18-12077, 2019 U.S. App. LEXIS 34146 (11th Cir. Nov. 15, 2019), the Court of Appeals for the 11th Circuit renewed the bite of Lujan’s ‘fairly traceable’ component of Article III standing, remanding to the District Court for it to re-do it’s analysis certifying a TCPA class against DIRECT TV. DIRECTV's second argument -- that class… Read More
In Dotson v. Ally Fin., No. 2:19-cv-2274, 2019 U.S. Dist. LEXIS 193764 (W.D. Tenn. Nov. 7, 2019), the District Court said that a TCPA defendant could not file a counter-claim in federal court against a TCPA Plaintiff. Nothing prevents Ally from suing Dotson in state court. A state court judgement may be used as a set-off to any judgment Dotson… Read More
In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2019 U.S. Dist. LEXIS 183886, at *9 (D. Mass. Oct. 23, 2019), Judge Gorton denied class certification of a TCPA wrong-number class. Implicit in Rule 23 is consideration of whether the identification of potential class members is "administratively feasible." Shanley v. Cadle, 277 F.R.D. 63, 67 (D. Mass. 2011). All… Read More
In Johnson v. Capital One Servs., LLC, No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160, at *3-4 (S.D. Fla. Oct. 15, 2019), Judge Bloom found a TCPA Plaintiff's handwritten call-logs to be admissible as a party-opponent admission. (For you trial lawyers out there, they probably could at least have been referred to under FRE 612 to refresh the witness' recollection, anyway).… Read More
In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More
In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox' manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion. The parties agree that all calls DAS placed to Ammons's 3436 Cell Phone used LiveVox HCI. (DSUF… Read More
In Bodie v. Lyft, Inc., No. 3:16-cv-02558-L-NLS, 2019 U.S. Dist. LEXIS 172998, at *6-7 (S.D. Cal. Oct. 4, 2019) , Judge Lorenz found "use" of an ATDS adequately pleaded. In addressing the second issue, the Ninth Circuit clarified that a total lack of human intervention was not required for a device to qualify as an ATDS. Marks, 904 F.3d at… Read More
In Sliwa v. Bright House Networks, No. 2:16-cv-235-FtM-29MRM, 2019 U.S. Dist. LEXIS 167805, at *56-63 (M.D. Fla. Sep. 27, 2019), the District Court denied class certification. Plaintiff identifies the following common questions of law or fact which he asserts will predominate over any individualized issues: whether (1) an automatic telephone dialing system or prerecorded voice technology was used; (2) Defendants'… Read More
In DeNova v. Ocwen Loan Servicing, LLC, No. 8:17-cv-2204-T-23AAS, 2019 U.S. Dist. LEXIS 163014 (M.D. Fla. Sep. 24, 2019), Judge Merryday overruled the Magistrate’s ruling that an Aspect dialing system was an ATDS. Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016, Ocwen Loan Servicing, attempting to collect DeNova's delinquent mortgage, used an "Aspect predictive dialing system"… Read More
