The District of Massachusetts recently entered summary judgment in favor of a plaintiff after deferring to FCC statements that purport to expand the definition of an automated telephone dialing system (“ATDS”) to include predictive dialers that can dial stored numbers without human intervention. See Davis v. Diversified Consultants, Inc., No. 13-10875 (D. Mass. June 27, 2014).
Jamie Davis sued Diversified Consultants Inc. (“DCI”), a debt collection agency, over calls to his cell phone. DCI had acquired a debt owed by Rosalee Pagan and then paid a third-party vendor for her telephone numbers and other information about her. But a number it obtained was assigned to Davis, who ended up receiving a total of 60 calls that were meant for Pagan. Davis filed suit and alleged that DCI had violated Section 227(b)(1)(A) of the TCPA, which makes it unlawful to “make any call (other than a call made for emergency purposes or made with the express prior consent of the called party) using any automated telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service[.]”
The Eastern District of New York recently denied a motion to dismiss and found that the plaintiff’s claims were not precluded by a different court’s ruling that the same claims against the same defendants had been mooted by an offer of judgment. See Bank v. Spark Energy Holdings, No. 13-6130, 2014 U.S. Dist. LEXIS 84493 (E.D.N.Y. June 20, 2014); Bank v. Spark Energy Holdings, No. 11-4082, 2013 U.S. Dist. LEXIS 150733 (S.D. Tex. Oct. 18, 2013).
The plaintiff alleges that he received telemarketing calls “using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(B). He first filed suit in the Southern District of Texas, where the defendants eventually made a Rule 68 offer of judgment. Although the plaintiff rejected that offer, the Texas court found that he no longer had a personal stake in the outcome of the litigation because he had been offered complete relief and had yet to move for class certification. As such, the Texas court found that it lacked subject matter jurisdiction and dismissed his claims. See Bank, 2013 U.S. Dist. LEXIS 150733, at *37-39.
On June 25, Judge Michael Anello of the Southern District of California granted summary judgment in favor of defendant Sharp Healthcare (“Sharp”) in Hudson v. Sharp Healthcare, 13cv1807-MMA, a purported class action alleging two counts under the TCPA (Count I for a negligent violation and Count II for a knowing/willful violation) regarding automated calls concerning unpaid hospital bills, ending that matter absent an appeal.
The original complaint was filed on August 2, 2013, and was comprised primarily of legal assertions (including citations to case law) and boilerplate asserting that defendant had violated the TCPA. The only purported fact alleged was that “Plaintiff was admitted to Sharp on or around September 25, 2012 and may have given them her cellular telephone number ending in 5954 at that time so Sharp could manually contact her about her treatment,” and that she did not consent to receiving autodialed calls. Complaint ¶¶ 14-15 [Dkt. No. 1] (emphasis added). The plaintiff later was granted leave to file an amended complaint that hedged her claims, alleging that if plaintiff provided her number to Sharp, “it was provided to Defendant solely to allow Defendant to contact Plaintiff about medical treatment follow-up” and reiterated that she “did not provide prior express consent to Defendant to be called by an [ATDS].” First Amended Complaint, ¶ 13 [Dkt. No. 29-2].
In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.
Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).
In Barr v. The Harvard Drug Grp., LLC, 13-62019, 2014 U.S. Dist. LEXIS 79422 (S.D. Fla. June 11, 2014), the court found that an offer of judgment served via email mooted the plaintiff’s claim despite the filing of a motion for class certification later that same day.
The class action complaint alleged that the defendant sent faxes in violation of the TCPA. The defendant served an offer of judgment on the plaintiff’s attorneys via email on November 27, 2013, at 11:12 am and also via UPS. The defendant offered to pay $1,500 for each alleged violation of the TCPA, to pay any costs and reasonable attorneys’ fees, and to stipulate to an injunction and the entry of a judgment against it. At 3:25 pm that same day, the plaintiff moved for class certification. Continue reading
The Eleventh Circuit recently ruled that the TCPA’s prohibition on prerecorded calling applies to wireless numbers that have been reassigned from a consenting subscriber to a new, presumably nonconsenting one, regardless of the caller’s knowledge of the reassignment. Breslow v. Wells Fargo Bank, No. 12-14564 (11th Cir. 2014). Currently, the Act permits businesses to place prerecorded telemarketing calls to wireless subscribers with “the prior express consent of the called party,” see 47 U.S.C. § 227(b)(1)(A), but does not specify whether the term “called party” refers to the intended recipient of the call or the actual recipient. Continue reading
The Eastern District of California recently compelled arbitration of a TCPA claim based on the broad language of the plaintiff’s arbitration agreement. See Delgado v. Progress Financial Company, No. 14-0033, 2014 WL 1756282 (E.D. Cal. May 1, 2014). In reaching its decision, the Delgado court distinguished the agreement from those at issue in two other district court decisions that held that TCPA claims fell outside the scope of arbitration agreements. Continue reading
The FCC recently denied a petition that had asked it to amend its rules so that it could preside over class actions. Although the Petition did not mention the TCPA, it would not have taken long for plaintiffs to create a new front of TCPA litigation had the Petition had been granted. Continue reading