The U.S. District Court for the Southern District of New York recently dismissed a putative class action alleging violations of the federal Telephone Consumer Protection Act (TCPA) against a marketing company that conducted a mass text message advertising campaign on behalf of a national retail clothing store. In so ruling, the Court held that: (1) the plaintiffs failed to adequately plead that the marketing company is directly liable under the TCPA as the party who “made” the subject text messages; and (2) the plaintiffs failed to adequately plead any agency relationship between the marketing company and the company that actually…
Posts published in “TCPA”
Joining several other federal district courts around the country, the U.S. District Court for the Eastern District of New York recently granted a joint motion to stay proceedings in a putative class action lawsuit alleging violation of the federal Telephone Consumer Protection Act (TCPA). The Court found that appeals currently pending before the Supreme Court of the United States would likely result in controlling determinations as to: (1) whether a Rule 68 offer of judgment renders a matter moot; (2) whether a plaintiff has standing to pursue his claims in the absence of actual damages or injury in fact; and…
In a non-precedential ruling, the U.S. Court of Appeals for the Seventh Circuit recently affirmed a district court ruling finding that telephone calls placed to a pro se consumer’s cellular telephone number did not violate the federal Telephone Consumer Protection Act (TCPA) because the calls were placed manually, and not using an automatic telephone dialing system (ATDS). In so ruling, the Seventh Circuit focused on the company representative’s declaration and the company’s call log establishing that the calls were initiated by a live representative, who made the calls by entering all numbers by hand. A copy of the opinion in Wayne…
The U.S. Bankruptcy Court for the Middle District of Florida recently held that: 1) A bankruptcy trustee was entitled to recover $1,000 in statutory damages on behalf of each of the husband and wife debtors against a loan servicer for violating the Florida Consumer Collection Practices Act (FCCPA) by contacting the debtors after they were represented by counsel; and 2) The servicer could not set off the $2,000 in FCCPA damages against the balance owed on the mortgage loan because, according to the Court, allowing a set off would thwart the FCCPA’s goal of deterring abusive debt collection practices; and…
Yesterday’s oral argument before the U.S. Supreme Court in Spokeo v. Robins suggests a struggle to fashion an understanding of what can constitute an “injury in fact.” It pitted the issue of whether a plaintiff’s standing to sue requires a tangible, concrete injury (loss of money, a job or property right) against the concept that the law can identify a “harm” (in this case, inaccurate information in a credit report) which itself is a real injury. Finding the Injury Spokeo v. Robins concerns an alleged violation of the Fair Credit Reporting Act. Robins claimed Spokeo compiled a report about him that contained false information…
In an Oct. 23 ruling, the Third Circuit Court of Appeals offered a mixed opinion that has the effect of both limiting and expanding the interpretation of automatic telephone dialing systems (ATDS), which can trigger a claim under the federal Telephone Consumer Protection Act. While the ruling poses increased risk for businesses that use dialers to contact customers, it also offers guidance on what can be done to reduce that risk. The opinion, Dominiguez, et. al v. Yahoo, Inc., is not precedential, meaning courts within the Third Circuit (New Jersey, Delaware, Pennsylvania and U.S. Virgin Islands) are not obligated to follow…
The U.S. District Court for the Middle District of Florida recently denied a motion to dismiss an amended complaint alleging that a time-share association violated the Florida Consumer Collection Practices Act (FCCPA) and the federal Telephone Consumer Protection Act (TCPA), holding that: A debtor need not use any precise language or magic word to notify a debt collector that the debtor is represented by legal counsel with respect to a debt; A voicemail message merely asking the debtor to return the call to discuss the debt was a debt collection communication; and Declaratory relief may be available under the TCPA.…
The U.S. Court of Appeals for the Third Circuit recently vacated an order of dismissal based on lack of statutory standing under the federal Telephone Consumer Protection Act, holding that a regular user of a phone line and occupant of the residence of the subscriber has standing to bring an action under the TCPA. In so ruling, the Court held that a caller may invoke the consent of the “called party” as a defense even if the plaintiff is someone other than the “called party.” The Court also held that, under Fed. R. Civ. P. 12(g)(2), it was error for…
The U.S. District Court for the Northern District of California recently held that a web-based platform used to send text messages was not an automatic telephone dialing system (ATDS) under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, because it required “human intervention…in several stages of the process” for sending the text messages. A copy of the opinion is available here: Link to Opinion. The plaintiff customer, who was a patron of a Las Vegas gentlemen’s club (the “Club”) sued the Club and a third-party mobile marketing company for sending him an allegedly “unwanted” text message. The…
Unsolicited e-faxes — documents converted to an email or attachment between the faxer and a recipient — are subject to the same consumer protections as unsolicited conventional faxes, according to a recent Federal Communications Commission declaratory ruling. The ruling built upon certain provisions of the Telephone Consumer Protection Act and the Junk Fax Protection Act, establishing that unsolicited communications that begin as faxes, including those converted to an electronic format after they are sent, justify consumer protection because e-faxes can cause some of the same issues and costs for businesses as conventional faxes. E-faxes “can increase labor costs for businesses,…
The U.S. Court of Appeals for the Sixth Circuit recently held that, under the federal Telephone Consumer Protection Act, a called party gives his “prior express consent” to be called on a cellular telephone number with an automatic telephone dialing system (ATDS) when that person gives his creditor his cellular telephone number in connection with a debt owed, even where the person provides his cellular telephone number after the transaction is originally entered into, so long as the number is provided in connection with the debt. The Sixth Circuit further ruled that a person need only provide general consent to…
The U.S. Court of Appeals for the Eleventh Circuit recently held that a putative class action plaintiff provided his “prior express consent” under the federal Telephone Consumer Protection Act (TCPA) by listing his cell phone number on an information sheet he provided to the caller. A copy of the opinion is available at: Link to Opinion. The plaintiff donated blood plasma in return for payment at a blood plasma collection center owned and operated by the defendants, who buy and resell blood products. The plaintiff filled out several documents incident to the donations, including an information sheet that asked for his…