Last week, the Eastern District of North Carolina denied a TCPA defendant’s personal jurisdiction challenge, finding unpersuasive its argument that it did not purposefully avail itself of the protections of North Carolina law because it did not intentionally make phone calls to Plaintiff in North Carolina. See Hicks v. Houston Baptist Univ., No. 5:17-CV-629-FL, 2019 WL 96219, at *4–5 (E.D.N.C. Jan. 3, 2019). Continue reading
Author Archives: Katie B. Garayoa
Third Circuit Reverses Denial of Class Certification, Remands for Development of Record Regarding Ascertainability
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
Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria
In a decision that many saw as lowering the bar for class certification, the Eighth Circuit recently reversed a trial court’s decision that a putative class was not readily ascertainable by reference to objective criteria. Sandusky Wellness Center LLC v. Medtox Scientific Inc., No. 15-1317, 2016 WL 1743037 (May 3, 2016). The Eighth Circuit held that classes must be readily ascertainable, which it had yet to squarely do, but found that this particular class was ascertainable, as it included individuals who “were sent” the fax at issue and “fax logs show[ed] the numbers that received faxes.” In doing so, it rejected the argument that fax logs do not necessarily identify the “recipient” of a fax who would have standing under 47 U.S.C. § 227(b)(1). Continue reading
District Court Says TCPA Plaintiffs Are Not Required To Plead Their Phone Numbers; Allows Plaintiff’s Negligence Claim Premised On Existence of Statutory Duty Of Care Under The TCPA To Move Forward
The District of South Carolina recently rejected the argument that TCPA claims must be dismissed if a plaintiff does not specify the telephone number that was allegedly called. See Williams v. Bank of America, No. 14-4809-RBH (D.S.C. June 19, 2015).
Court Lets Debt-Collector Amend Answer and Assert Counterclaim for Plaintiff’s Debt
In a TCPA class action case concerning debt collection calls, the Southern District of California recently granted a debt-collector defendant’s motion to file an amended answer and assert a counterclaim for breach of contract arising from the plaintiff’s approximately $22,000 debt for the purchase of a used vehicle. See Horton v. Calvary Portfolio Servs., LLC, No. 13-cv-0307, 2014 U.S. Dist. LEXIS 102569 (S.D. Cal. July 24, 2014).
Court Stays TCPA Class Action So Parties Can Request FCC Ruling Regarding Whether Defendants Used An Automatic Telephone Dialing System
The Southern District of Texas recently granted a motion to stay proceedings pending a primary jurisdiction referral to the FCC in Fried v. Sensia Salon, Inc., et al., No. 4:13-cv-00312, 2013 U.S. Dist. LEXIS 168645 (S.D. Tex. Nov. 27, 2013). A copy of the decision is available here.
Sensia, a beauty salon in Houston, contracted with Textmunications, Inc., a mobile technology company, which in turn contracted with Air2Web, a mobile messaging aggregator (“MMA”), to transmit text message advertisements to Sensia’s former and current customers. Plaintiffs allege violations of the TCPA, violations of § 305-053 of the Texas Business and Commerce Code (“TBCC”), invasion of plaintiffs’ privacy, and conspiracy to violate the TCPA and TBCC.