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District Court (Mass.) Denies Certification of TCPA Wrong-Number Class

by Scott J. Hyman |

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

District Court (Fla.) Addresses Hearsay Evidentiary Issue with Plaintiff’s Call Logs, “clicks and pauses”, and other claims in TCPA Litigation

by Scott J. Hyman |

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

District Court (Cal.) Says Plaintiff Did Not Plead Use of an ATDS or that Defendant was Subject to FDCPA/Rosenthal Act

by Scott J. Hyman |

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

District Court (Cal.) Says that 9th Cir.’s Marks Decision Does Not Mean That the TCPA Encompasses Manually Dialed Calls

by Scott J. Hyman |

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

District Court (Cal.) Follows Marks; Sets Forth Pleading Standard

by Scott J. Hyman |

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

District Court (Fla.) Denies Class Cert. in TCPA “Wrong-Number” Case

by Scott J. Hyman |

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

District Court (Fla.) Overrules Magistrate’s Recommendation; Finds Aspect Dialing System is Not an ATDS

by Scott J. Hyman |

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

District Court (Ill.) Says No ATDS Was Used to Send Text Messages

by Scott J. Hyman |

In Smith v. Premier Dermatology, No. 17 C 3712, 2019 U.S. Dist. LEXIS 152887 (N.D. Ill. Sep. 9, 2019), Judge Alonso found that no ATDS was used to send text messages and granted summary judgment against a TCPA Plaintiff. While this Court might quibble with the grammatical analysis of Pinkus in some particulars, it agrees with its central insight that… Read More

District Court (Fla.) Disposes of TCPA Claims Using Aspect Dialer, But Says “Pre-Recorded” Message Claims Survive

by Scott J. Hyman |

In Brown v. Ocwen Loan Servicing Llc, No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236, at *11-15 (M.D. Fla. Sep. 5, 2019), Judge Barber granted in part and denied in part summary judgment brought by a TCPA defendant, distinguishing between pre-recorded and non-prerecorded calls. Ocwen contends summary judgment on the Browns' TCPA claims is warranted because its Aspect dialer is not… Read More

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