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Posts published in “TCPA”

11th Cir. Holds Class Representative ‘Incentive Awards’ Prohibited by SCOTUS Precedent

The U.S. Court of Appeals for the Eleventh Circuit recently reversed and partially vacated approval of a class representative’s incentive award, remanding the case to the trial court to adequately explain its fee award, its denial of a class member’s objections, and its approval of the class settlement. 

6th Cir. Adopts Expansive Reading of TCPA’s Definition of ATDS, Joining 2nd and 9th Cirs.

The U.S. Court of Appeals for the Sixth Circuit recently affirmed entry of summary judgment in favor of plaintiffs alleging violations of the federal Telephone Consumer Protection Act for calls placed by their student loan servicer to their cell phones using an alleged automatic telephone dialing system (ATDS) after they revoked consent to receive such calls.

Debt Collection Communications Receive New Protection Under U.S. Supreme Court’s Recent TCPA Decision

The U.S. Supreme Court recently decided that a fix was needed to the federal Telephone Consumer Protection Act. But its decision in Barr v. American Assn. of Political Consultants, Inc. provides no TCPA relief for legitimate businesses that use technology to communicate with their customers.

11th Cir. Holds TCPA Consent Cannot Be Unilaterally Revoked, But Allows Unrelated FCCPA Claim to Proceed

The U.S. Court of Appeals for the Eleventh Circuit recently reversed entry of summary judgment in favor of a satellite television provider against a consumer on claims that it violated the Florida Consumer Collection Practices Act by attempting to collect a debt it knew had been discharged in bankruptcy and directly contacting the plaintiff consumer knowing she was represented by counsel.

2019: A Watershed Year for Consumer Financial Services Law

It has been an extraordinary 365 days for consumer financial services law. I cannot recall a year where so many states introduced legislation or proposed regulations or rules impacting the credit industry. At the federal level, proposed rules for the Fair Debt Collection Practices Act were (finally) released and California also proposed regulations under the California Consumer Privacy Act.

11th Cir. Holds Single Alleged TCPA Violation Not Enough for Standing, Disagrees with 9th Cir.

The U.S. Court of Appeals for the Eleventh Circuit recently held that the receipt of one unwanted text message in alleged violation of the federal Telephone Consumer Protection Act was not enough to allege a concrete harm that meets the injury-in-fact requirement of Article III. In so ruling, the Eleventh Circuit noted that it was not persuaded by the Ninth Circuit’s opinion in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), which held that the receipt of two unsolicited text messages constituted an injury in fact.  Accordingly, the Eleventh Circuit reversed the ruling of the…

9th Cir. Holds TCPA’s Federal Debt-Collection Exception Unconstitutional, Joins 4th Cir.

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a putative class action under the federal Telephone Consumer Protection Act finding that the plaintiff adequately alleged that the defendant placed calls using an automated telephone dialing system. In so ruling, the Ninth Circuit joined with a similar ruling by the Fourth Circuit, and held that the TCPA’s exception for calls “made solely to collect a debt owed to or guaranteed by the United States” was incompatible with the First Amendment and severed the exception as an unconstitutional restriction on speech. A copy of the opinion in…

9th Cir. Reverses Summary Judgment on TCPA Allegations Creditor Ratified Contractor’s TCPA Violations

The U.S. Court of Appeals for the Ninth Circuit recently reversed a summary judgment award in favor of a student loan buyer, holding that triable issues of fact existed as to whether it had actual knowledge of or willfully ignored and thereby ratified the Telephone Consumer Protection Act (TCPA) violations of the debt collectors contracted by the owner’s servicer. A copy of the opinion in Henderson v. United Student Aid Funds is available at:  Link to Opinion. The plaintiff received student loans through a federal program under which the owner of the loans “guarantees student loans made by private lenders and…

7th Cir. Upholds Denial of Class Certification in TCPA Cases Due to Individualized Issues of Consent

On a consolidated appeal for purposes of disposition, the U.S. Court of Appeals for the Seventh Circuit recently affirmed the trial courts’ rulings denying class certification to lead plaintiffs who received faxed advertisements that allegedly did not comply with the Telephone Consumer Protection Act and the Federal Communication Commission’s Solicited Fax Rule. In so doing, the Seventh Circuit, relying upon the D.C. Circuit’s 2017 decision in Bais Yaakov of Spring Valley v. FCC regarding the validity of the FCC’s 2006 Solicited Fax Rule, concluded that class treatment was not a superior mechanism for cases involving unsolicited faxes, as the question of…

3rd Cir. Holds American Pipe Tolling Does Not Apply to Named Plaintiff in Failed Putative Class Action

The U.S. Court of Appeals for the Third Circuit recently held that the tolling doctrine set forth in American Pipe & Constr. Co. v. Utah does not apply where the named plaintiff in a failed class action commences a subsequent lawsuit outside the statute of limitations. In so ruling, the Court held that American Pipe only tolls the statute of limitations for unnamed members of the putative class. A copy of the opinion in Weitzner v. Sanofi Pasteur Inc. is available at:  Link to Opinion. In April 2004 and March 2005, a doctor received two unsolicited faxes from a pharmaceutical company and…

N.D. Illinois Joins Other Courts in Limiting Scope of ‘ATDS’ Under TCPA

The U.S. District Court for the Northern District of Illinois recently held that the defendant company did not use an automatic telephone dialing system (ATDS) because its phone system did not use a random or sequential number generator to store or produce phone numbers to be called. In so ruling, the Court reversed a prior order and now entered summary judgment in favor of the defendant company on the plaintiff’s alleged TCPA claim in light of ACA International v. FCC, 885 F.3d 687, 695 (D.C. Cir. 2018). A copy of the opinion in Johnson v. Yahoo! Inc. is available at:…

9th Cir. Adopts Broad Definition of ATDS Under TCPA, Reverses Trial Court’s Ruling

The U.S. Court of Appeals for the Ninth Circuit recently held that the term automatic telephone dialing system (“ATDS”), as defined by the federal Telephone Consumer Protection Act, includes devices that store telephone numbers to be called, “whether or not those numbers have been generated by a random or sequential number generator.” Accordingly, the Ninth Circuit vacated the trial court’s order dismissing the plaintiff’s putative class action asserting violations of the TCPA, 47 U.S.C. § 227, et seq. A copy of the opinion in Marks v. Crunch San Diego, LLC is available at:  Link to Opinion. In 2012, the plaintiff signed up…