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9th Cir. Addresses Enforcement of “On-Line” Consent to Arbitration in TCPA Case

by Scott J. Hyman |

In Berman v. Freedom Fin. Network, LLC, No. 20-16900, 2022 U.S. App. LEXIS 9083, at *12-14 (9th Cir. Apr. 5, 2022), the 9th Circuit addressed the enforceability of an arbitration agreement set forth on a website that allowed the consumer to click-through the operator's various policies and the arbitration.  The Court of Appeals stated the rule as follows: The most… Read More

District Court (Cal.) Finds that a Text Message is Not a “Pre-Recorded Voice” under the TCPA

by Scott J. Hyman |

In Eggleston v. Reward Zone USA LLC, No. 2:20-cv-01027-SVW-KS, 2022 U.S. Dist. LEXIS 20928, at *11-14 (C.D. Cal. Jan. 28, 2022), Judge Wilson dismissed a TCPA "pre-recorded voice" case premised on the theory that the standard text messages that she received did not constitute a "voice" under the TCPA. Plaintiff also alleges that Defendant's text messages violated § 227(b) because… Read More

Reports of the TCPA’s Death Exaggerated: Court Certifies Nationwide “Wrong Number” TCPA Class Action

by Rebecca Snavely Saelao |

A federal district court in Arizona has certified a nationwide “non customer” class under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) against Citibank, N.A. TCPA class actions carry enormous potential liability, as the statute provides for recovery of $500 to $1,500 per call for unconsented autodialed or prerecorded calls to cellular telephones. The case is Head v.… Read More

District Court (Cal.) Says No ATDS Was Used Post-Duguid

by Scott J. Hyman |

In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2021 U.S. Dist. LEXIS 239583, at *23-30 (N.D. Cal. Dec. 14, 2021), Judge Spero granted summary judgment to a TCPA defendant on the basis that no ATDS was used. Based on the undisputed facts relating to Textedly's functionality, Plaintiff does not dispute that the text messages at issue in this case were not… Read More

District Court (Cal.) Dismisses TCPA “ATDS” Claim, But Allows Rosenthal Act Claim to Proceed on Whether Defendant Regularly Collected Debts

by Scott J. Hyman |

In Raphael Aus. v. Alorica, Inc., No. 2:20-cv-05019-ODW (PVCx), 2021 U.S. Dist. LEXIS 240677, at *5-6 (C.D. Cal. Dec. 16, 2021), Judge Wright dismissed a TCPA claim but allowed a Rosenthal Act claim to proceed.  As to the TCPA claim, Judge Wright held: The parties dispute whether alleging that a system calls a prepopulated list of customers or clients is… Read More

District Court (Cal.) Discusses the Effect of “Wrong Number” Codes on TCPA Class Action

by Scott J. Hyman |

In Brown v. DirecTV, LLC, No. CV 13-1170 DMG (Ex), 2021 U.S. Dist. LEXIS 231014, at *15-23 (C.D. Cal. Dec. 1, 2021), Judge Gee discussed how wrong number codes might impact class certification. But that does not mean that Plaintiffs' procedure is otherwise improper—if done in the proper sequence. The Class is defined to include only non-customers, and DirecTV has… Read More

District Court (Cal.) Prohibits Further Discovery from Dialer Manufacturer on Whether its Product is an ATDS Due to Other District Court Opinions Saying that It Is Not

by Scott J. Hyman |

In In re Portfolio Recovery Assocs., LLC, No. 11md02295 JAH - BGS, 2021 U.S. Dist. LEXIS 216747, at *32-34 (S.D. Cal. Nov. 9, 2021), Judge Houston denied TCPA plaintiffs' request for further discovery from the dialer manufacturer on whether its product was an ATDS. On May 27, 2021, this Court granted Plaintiffs' motion seeking to reopen discovery for the limited… Read More

District Court (Cal.) Says TCPA Claim Survives Class Representative’s Death, and Estate Can Properly Represent the Class

by Scott J. Hyman |

In Estate of O'Shea v. Am. Solar Sols., Inc., No. 14cv894-L-RBB, 2021 U.S. Dist. LEXIS 199171 (S.D. Cal. Oct. 15, 2021), Judge Lorenz substituted a deceased TCPA Plaintiff’s estate as Class Representative. Next, substitution may be made by a successor only if the claim is not extinguished by the death of the named party. Fed.R.Civ.P. 25(a)(1). The issue of survivability… Read More

District Court (N.C.) Applies AAPC Retroactively in TCPA Case

by Scott J. Hyman |

In Hogans v. Charter Communs., Inc., No. 5:20-CV-566-D, 2021 U.S. Dist. LEXIS 182992, at *22-27 (E.D.N.C. Sep. 24, 2021), Judge Dever applied AAPC retroactively, and examined the various options for applying AAPC. In AAPC, a majority of the Court left unanswered the question of retrospective liability under section 227(b)(1)(A)(iii) for the time period in which it was unconstitutional. Three possible… Read More

District Court (Cal.) Says State Law Anti-Spam Rule Conferred Article III Standing, Plaintiff’s Protestation to Remand Notwithstanding

by Scott J. Hyman |

In Lynch v. Aml Network, No. CV 21-3574-GW-RAOx, 2021 U.S. Dist. LEXIS 187234, at *11-14 (C.D. Cal. Sep. 27, 2021), Judge Wu kept jurisdiction over a state-law anti-spam case, disagreeing with the Plaintiff that he did not have Article III standing. Findings (e) and (h) explicitly compare the harms caused by spam emails to injuries caused by junk faxes and… Read More

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