A district court in the District of Arizona granted a motion to dismiss in a Telephone Consumer Protection Act (TCPA) case on the basis that multimedia messaging service (MMS) texts do not constitute prerecorded messages unless the audible component plays automatically upon opening.
Virginia is a partner in the firm’s Consumer Financial Services practice and specifically within the Financial Services Litigation practice. She represents clients in federal and state court, both at the trial and appellate level in the areas of complex litigation and business disputes, health care litigation, including ERISA and out-of-network issues, and consumer litigation in over 21 states nationwide. As a result of new legal developments, she increasingly counsels clients to ensure they comply with the myriad of growing laws in the consumer law with a particular emphasis on the intersection of TCPA and HIPAA.
Last week, a district court in Nevada held that an undated, model form debt validation notice does not violate the Fair Debt Collection Practices Act (FDCPA). In Bergida v. PlusFour, Inc., the defendant sent a debt validation letter to the plaintiff that followed the model form provided by the Consumer Financial Protection Bureau (CFPB). The letter was not dated. The plaintiff claimed the letter violated FDCPA §§ 1692d, e, f, and g because she could not determine what date was “today” and “now,” which allegedly misled her about the status of the debt, confused her, made the letter seem illegitimate and suspicious, and caused her to spend time and money trying to figure out whether the debt was valid. When considering the defendant’s motion to dismiss, the court applied the least sophisticated debtor standard and found that the plaintiff failed to state a claim.
In Moore v. Merchants & Medical Credit Corp., Inc., the plaintiff initiated litigation in state court alleging a violation of the Fair Debt Collection Practices Act (FDCPA) based on the defendant’s use of a letter vendor to send the plaintiff a demand. After removal, the U.S. district court for the Middle District of Pennsylvania found that the plaintiff failed to allege a harm sufficient to confer federal jurisdiction and remanded the case to the original Pennsylvania state court.
In Perrong v. Bradford et al, the plaintiff alleged that the defendant, an elected official, violated the Telephone Consumer Protection Act (TCPA) by calling his residential phone using a prerecorded message and an automatic telephone dialing system (ATDS). He further alleged that his telephone number was registered with both the national and Pennsylvania Do Not Call registries.
Parking Revenue Recovery Services, Inc. (PRRS), a collection company, was accused of violating the Colorado Fair Debt Collection Practices Act (CFDCPA) by allegedly illegally collecting or attempting to collect on parking fines that were already paid or were incurred by another vehicle owner. PRRS was also accused of allowing its collection license to expire on July 1, 2022, not submitting a new license application until December 2022, but still continuing to collect debts in the state in the interim.
On August 8, a unanimous panel of the Ninth Circuit issued a decision affirming a district court’s partial dismissal judgment entered in Trim v. Reward Zone USA LLC, holding that text messages did not use prerecorded voices under the Telephone Consumer Protection Act (TCPA) because they did not include audible components.
In Wiley v. American Financial Network, Inc., a district court judge in the Central District of California denied a motion for class certification in a Telephone Consumer Protection Act (TCPA) case, finding the defendant provided evidence suggesting the plaintiff invited the calls.
As discussed here and here, D.K. et al. v. United Behavioral Health et al. is a case that has been carefully watched in the health benefits space for its impact on what health plan administrators must include in adverse benefit determination letters. In D.K., the Tenth Circuit held health plan administrators cannot rely…
The Eleventh Circuit has now joined seven other circuits in holding that receipt of unwanted text messages constitutes concrete injury for standing. On July 24, the Eleventh Circuit issued an en banc decision in Drazen v. Pinto, holding that a plaintiff who received a single, unwanted text message has standing to sue under the Telephone Consumer Protection Act (TCPA). The court departed from its earlier ruling in Salcedo v. Hanna, which held that a single unsolicited text message is but a “brief, inconsequential annoyance  categorically distinct from those kinds of real but intangible harms” that confer Article III standing.
More than two years after the Supreme Court released its ruling in Facebook v. Duguid, confirming the meaning of automatic telephone dialing systems (ATDS) under the Telephone Consumer Protection Act (TCPA), a plaintiff has filed a petition for a writ of certiorari to the Supreme Court to challenge the Ninth Circuit’s application of the Facebook decision. The Facebook ruling effectively closed the door on one of the broadest classes of TCPA-related litigation; since then, plaintiff-side advocates have worked ceaselessly, though largely unsuccessfully, to chip away at the ruling. If the Supreme Court accepts the appeal, this will represent a significant development in the ongoing saga of ATDS litigation.