TCPA Case Law Review for September-November 2017

insideARM maintains a free TCPA resources page to provide a destination for timely and topical information on the Telephone Consumer Protection Act of 1991 (“TCPA”) that is relevant to the ARM community. This page is generously supported by Neustar. 

The cornerstone of the page is a chart of significant TCPA cases. Click on the link in the chart for the complete text of the decision. Where insideARM has already published a story on the case, a link is provided. Case information is provided by the Bedard Law Group.

----

The following are case highlights from the last 90 days that should be interesting to members of the ARM community.

Kukia R. Farrish v. Navy Federal Credit Union

The gist: Plaintiff failed to oppose defendant’s motion to dismiss and also failed to state a claim in her amended complaint, so her amended complaint was dismissed with prejudice. After the dismissal, plaintiff sent another letter, which was construed by the court as a motion to alter or amend the judgment. Having provided no reason for the court to alter or amend, the plaintiff’s motion was denied.

Peter Lundstedt v. IC System, LLC

The gist: Plaintiff’s complaint centered on defendant placing calls to his home telephone number 29 times over 24 days in an attempt to collect a $160 debt to Verizon. The complaint alleged violations of plaintiff’s rights under multiple statutes and common law. Defendant moved for judgment on the pleadings. Court found a valid claim for relief under the FDCPA for harassing or annoying calls, but found no valid claim for relief under the TCPA.

Trenish v. BorrowersFirst

The gist: Plaintiff, a bankruptcy trustee, filed suit on behalf of the estate he represented, alleging violations under the TCPA for numerous calls made by BorrowersFirst attempting to collect a debt. Defendant moved for the court to compel arbitration because the loan contract in question requires plaintiff to arbitrate these claims. Plaintiff alleged that a bankruptcy, withdrawal of consent to call, and a default on the loan severed the contract in question, but the court disagreed, and required arbitration in the matter.

Selby v. Ocwen Loan Servicing

The gist: Judge Bencivengo was again asked by a defendant to dismiss TCPA claims on the grounds that the Court lacked Article III standing to hear the dispute because the plaintiff had not suffered any “actual” or “concrete” harm  as a result of the errant phone calls. As she has done twice before in the last year, Judge Bencivengo obliged.

Viggiano v. Kohl’s Dep’t Stores, Inc.

The gist: Kohl’s moved to dismiss a TCPA case where it was abundantly clear that the plaintiff was nothing more than a sassy Opt-Out Evader. However, none of the facts needed to prove the opt-out evasion were pleaded on the face of the complaint. Ultimately, the Court found that Kohl’s Terms and Conditions provided a “reasonable means” of opting out to consumers, and that plaintiff failed to use the ordained method. The Court held that Kohl’s gets to dictate the revocation method so long as it is not “difficult or impossible to effectuate revocations.”

Ginwright v. Exeter Fin. Corp. 

The gist: Plaintiff sued for TCPA violations contending that he had revoked his consent to be called by repeatedly responding “no” when asked orally to consent by the Defendant’s agents, and also by asking not to be called on numerous occasions. Defendant moved for summary judgment, which was ultimately denied despite very potent evidence that Plaintiff’s claims of revocation were entirely concocted.