Inadmissible Hearsay Will Not Create Genuine Issue of Fact Regarding Whether Plaintiff Revoked Consent

The Southern District of Texas recently entered summary judgment in favor of a TCPA defendant, holding that the plaintiff had failed to present competent proof that she had orally revoked her consent to be called by a collection agency. Young v. Medicredit Inc., No. 17-3701, 2019 WL 1923457, at *4 (S.D. Tex. Apr. 26, 2019). Continue reading   »

Class Certification Fails Due to Individualized Issues of Consent

The Northern District of California recently denied a plaintiff’s motion for class certification after finding there was no “common method of proof” to determine which members of the class consented to Defendant’s calls. Revitch v. Citibank, N.A., No C 17-06907 WHA, 2019 WL 1903247 at *4 (N.D. Cal. Apr. 28, 2019). This decision is yet another example of how individualized issues of consent can defeat a plaintiff’s predominance requirement under Rule 23(b)(3). Continue reading   »

FTC’s Decision Treating Soundboard Calls as Robocalls Remains Undisturbed. What Comes Next?

A two-year legal battle in the federal courts has come to an end, the Supreme Court announced last week. On April 15, 2019, it declined to review the Soundboard Association’s challenge to the legality of a Federal Trade Commission decision in 2016 that outbound telemarketing calls made through soundboard technology are robocalls.

Soundboard technology allows call center agents to interact and converse with consumers on a real-time basis using a combination of audio clips and the agent’s own voice. It may involve reading a pre-determined script, responding to queries and interjections from consumers by playing a pre-recorded audio clip, using “response keys” to generate common interactive conversational responses (such as “I understand,” “exactly,” “yeah,” or a recorded statement that the agent is a real person using audio clips to communicate with the consumer), or giving the consumer the option to speak with a live operator’s own voice for the duration of the call. It has been widely used by call centers in the last two decades. Continue reading   »

Court Holds that Pre-Suit Offer Did Not Moot Claims

The U.S. District Court for the Southern District of Florida recently held that a defendant’s pre-suit proffer of a settlement check and a letter promising not to violate the TCPA in the future did not moot the plaintiff’s claims because the plaintiff did not accept the offer. Edelsberg v. Brea Fin. Gp., LLC, No. 18-cv-62119, 2019 WL 1302828 (S.D. Fla. Eb. 26, 2019). The case highlights the ongoing litigation regarding Article III standing in the wake of the U.S. Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). Continue reading   »

Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case

The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading   »

California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him

Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.

In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading   »

Courts Continue to Reject FCC’s Pre-2015 ATDS Rulings in Light of ACA International

In Johnson v. Yahoo!, Inc., No. 14-2028 (N.D. Ill.), the plaintiff alleged that Yahoo! violated the TCPA by automatically texting her after pulling her number from a database of stored numbers. The trial court initially denied Yahoo!’s motion for summary judgment because—based on FCC decisions from 2003, 2008 and 2012—it believed that there were genuine issues of material fact regarding whether the dialing equipment qualified as an ATDS. During the pendency of the case, however, the FCC issued its 2015 Declaratory Ruling & Order, which, as our regular readers well know, was appealed to and eventually rejected by the D.C. Circuit.  Continue reading   »

FCC Adopts Order Creating a Centralized Reassigned Number Database

After several proceedings and requests for comment, the FCC has approved the creation of a single, centralized reassigned numbers database—a new resource to identify and avoid calling reassigned numbers. Ideally, the proposed database will help businesses in identifying numbers that are being recycled before they are called, thus helping to cut down on the number of calls consumers receive by mistake. This alert outlines the framework of the new database, including access, administration, types of information collected, usage, and potential costs and benefits.

Read the full alert.

Second Circuit Follows Seventh Circuit, Finds that Rule 67 Tender Does Not Moot Claims

Nearly three years ago, in Campbell-Ewald Co. v. Gomez, the Supreme Court held that claims are not mooted by unaccepted offers of complete relief under Rule 68 because they create neither an “obligation” to provide nor an “entitlement” to receive any relief. But the Court expressly left open the possibility that depositing the full amount of a plaintiff’s individual claim in an account payable to the plaintiff might be enough. Continue reading   »

Continued Confusion Concerning Whether Professional Plaintiffs Have Standing

Two courts recently examined whether professional plaintiffs had standing to assert TCPA claims. Their decisions betray a continuing confusion concerning what it is that gives plaintiffs—particularly serial plaintiffs—standing to sue. See Cunningham v. Florio, No. 17-0839, 2018 WL 4473792 (E.D. Tex. Aug. 6, 2018); Morris v. Hornet Corp., No. 17-0350, 2018 U.S. Dist. LEXIS 170945 (E.D. Tex. Sept. 14, 2018). Continue reading   »