The Third Circuit recently vacated a trial court’s decision that members of a putative class were not readily ascertainable by reference to objective criteria. City Select Auto Sales Inc. v. BMW Bank of North America Inc., 867 F.3d 434 (3d Cir. 2017). Although it did not find that a class was in fact ascertainable, it held that the trial court misapplied the ascertainability standard and remanded for further proceedings. Id. at 443. Continue reading
After awarding a judgment as a matter of law at the close of plaintiffs’ case, Judge E. Richard Webber of the Eastern District of Missouri reduced the award because statutory damages of $500 per call would have been “obviously unreasonable and wholly disproportionate to the offense,” making it unconstitutional as applied to the facts of the case. Golan v. Veritas Entm’t, LLC, No. 14-0069, 2017 WL 3923162, at *4 (E.D. Mo. Sept. 7, 2017).
Last week the Eleventh Circuit held that a consumer can revoke her consent not only orally but also partially. See Schweitzer v. Comenity Bank, No. 16-10498 (11th Cir. Aug. 10, 2017). The rule it announced would be a double-edged sword that makes it more difficult not only for defendants to comply with the TPCA, but also for plaintiffs to satisfy Rule 23.
The plaintiff in Schweitzer provided her cellular telephone number—and, by doing so, her consent to be called at that number—when she applied for a card from the defendant. See Opinion at 3. When she failed to make timely payments on that credit card a year later, the defendant allegedly placed “hundreds” of “automated” calls regarding her debt. The plaintiff answered at least two of those calls. Id. During the first, she said “And, if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.” Id. at 4. During the second, she said “Can you just please stop calling? I’d appreciate that, thank you very much.” Id. The defendant continued calling after the first exchange, but stopped calling after the second. Id. Continue reading
The Eastern District of Michigan recently dismissed a TCPA claim with prejudice after finding that the single fax at issue did not constitute an advertisement. See Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., No. 16-13777, 2017 U.S. Dist. LEXIS 28439 (E.D. Mich. Mar. 1, 2017). In doing so, it reaffirmed the Sixth Circuit’s position that, in deciding whether a fax is an advertisement, courts should not look beyond the four corners of the document and should ask whether it “‘promote[s] goods or services to be bought or sold’” and “‘ha[s] profit as an aim.’” Id. at *4 (citation omitted). Continue reading