Plaintiff Withdraws Appeal Before Ninth Circuit Can Review Order Dismissing TCPA Class Action

As we previously reported, Plaintiff David Emanuel recently took an appeal from the Central District of California’s dismissal of a class action asserting that the Los Angeles Lakers violated the TCPA by sending text messages without the recipients’ consent.  The trial court dismissed the case with prejudice after finding that the plaintiff had consented to the text message by sending the Lakers a text message of his own, and had parroted the definition of an ATDS rather than pleaded any facts tending to show that the Lakers had actually used one. See Emanuel v. L.A. Lakers, Inc., 12-9936, 2013 WL 1719035 (C.D. Ca. Apr. 18, 2013). The plaintiff then took an appeal in which Twitter and Path filed a notable amicus brief that railed against the veritable cottage industry of plaintiffs’ lawyers that is transforming “a statute intended to curb vexatious telemarketing” into a “vehicle for vexatious lawsuits.”

On New Year’s Eve, the plaintiff filed short “Notices of Settlement” informing both the trial court and Ninth Circuit that “this case has been settled in its entirety, on an individual basis” and that “the parties anticipate filing a Joint Motion for Dismissal with prejudice as to the named plaintiff and without prejudice as to the putative class within 45 days.” As of today, no such Motion appears on the Ninth Circuit or Central District of California dockets and (not surprisingly) the terms of the individual settlement have not been disclosed. So while the Central District of California’s decision still stands, a Ninth Circuit decision adopting its reasoning will unfortunately have to wait for another day.

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