Summary Judgment Archives - Page 2 of 3

Category - "Summary Judgment"

Court Holds That Text-Messaging System Must Be Able to Randomly or Sequentially Generate Numbers to Qualify as an ATDS

The Northern District of Illinois recently entered summary judgment against a group of plaintiffs because it found the system at issue was not an ATDS.

In Smith v. Premier Dermatology, No. 17-3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019), the Defendants used a proprietary “eRelevance” system to send medical marketing communications by text message to their clients’ customers or patients. Defendant eRelevance Corporation would have its clients provide their current and prospective customer contact information, which would be uploaded into the eRelevance system. Based on client-selected criteria, the system would create lists of contacts, and once eRelevance employees built a text-message marketing campaign, they could push a button to have the system automatically send text messages to each contact on the list.

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Florida U.S. District Court Grants Victory for Defendant, Finds its Dialing Equipment Is Not an ATDS

In many TCPA cases, the sufficiency of a plaintiff’s allegations, particularly those concerning the defendant’s alleged use of an automatic telephone dialing system (“ATDS”), are tested at the pleadings stage through a motion to dismiss. No matter which side prevails, a trial court’s ruling at that procedural moment is limited to whether ATDS allegations are plausible—not whether any evidence actually proves that an ATDS was, in fact, used. And because so many lawsuits are resolved through an early settlement, a defendant often does not have a day in court on the question of whether its dialing equipment as configured and used constitutes an ATDS.

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Federal Courts Continue to Split Over Whether They Have Personal Jurisdiction Over Claims Brought By Non-Forum Class Members Against Non-Forum Defendants

For years, the plaintiffs’ bar has crammed thousands of non-forum class members into a single action in order to more easily justify broader discovery requests, and to more quickly aggregate statutory damages. And many defendants and courts simply assumed that plaintiffs could do so. But that assumption was called into question by Bristol-Myers Squibb Co. v. Superior Court of California, a mass tort case in which the Supreme Court held that federal courts do not have specific personal jurisdiction over the nonresidents’ claims merely because resident plaintiffs “allegedly sustained the same injuries as did the nonresidents.” Continue reading “Federal Courts Continue to Split Over Whether They Have Personal Jurisdiction Over Claims Brought By Non-Forum Class Members Against Non-Forum Defendants”

Eastern District of Michigan Finds No Strict Liability for Faxes Sent Without Defendant’s Knowledge or Involvement

Recently, an Eastern District of Michigan court entered summary judgment in favor of a defendant upon finding that it had neither transmitted nor caused the transmission of the fax at issue. In Garner Properties & Management, LLC v. Marblecast of Michigan, Inc., the plaintiff alleged that it had received an unsolicited fax that referenced the products of two companies: Marblecast of Michigan and American Woodmark. The plaintiff sued both companies in a putative class action. American Woodmark eventually moved for summary judgment and argued that the plaintiff had failed to offer evidence from which a reasonable juror could conclude that it had “sent” the fax at issue. See 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless. . . .”) (emphasis added). In opposition, the plaintiff argued that American Woodmark was strictly liable as a sender under the TCPA because the fax had referenced its products. Continue reading “Eastern District of Michigan Finds No Strict Liability for Faxes Sent Without Defendant’s Knowledge or Involvement”

District Court Grants Summary Judgment for Defendant, Finding its Dialing System Is Not an ATDS

As consumers and businesses await clarity from the FCC regarding the definition of “automatic telephone dialing system” (“ATDS”), district courts throughout the country continue to grapple with competing appellate decisions in order to resolve pending cases within this uncertain and fast-changing legal landscape. A recent decision, Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018) (available here), provides an illustration of this current climate, as a Minnesota federal judge had to address four appellate cases concerning the ATDS definition from this year alone, including the seminal ACA International decision. The decision is also notable because the court concluded that the defendant’s “predictive dialing systems” did not violate the TCPA. Continue reading “District Court Grants Summary Judgment for Defendant, Finding its Dialing System Is Not an ATDS”

Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory

The Ninth Circuit recently affirmed summary judgment for five defendants—three payday lenders and two lead-generation vendors—in a certified class action where it was undisputed that the text message at issue violated the TCPA. See Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010 (9th Cir. 2018). Rejecting Plaintiff’s ratification theory, the court held that the defendants were not vicariously liable for the actions of a non-party “publisher,” AC Referral—the entity that initiated the text. The Ninth Circuit’s opinion provides useful guidance as to scope of TCPA liability for all players involved in an SMS campaign, particularly those that do not actually press “send.” Continue reading “Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory”

Independent Contractor vs. Agent under the TCPA

The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls.

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Federal Court Holds Mobile App Platform Did Not Make or Initiate Invitational Text Messages, Grants Summary Judgment

In a recent decision by the Southern District of California, summary judgment was entered in favor of a second-hand fashion retailer, Poshmark, in a putative class action. The court concluded that the user of the app, not Poshmark, had “made the calls” that invited the plaintiff to use the mobile app. See Reichman v. Poshmark, Inc., No. 16-2359, 2017 U.S. Dist. LEXIS 73769, at *11 (S.D. Cal. May 15, 2017). Continue reading “Federal Court Holds Mobile App Platform Did Not Make or Initiate Invitational Text Messages, Grants Summary Judgment”