In Lee v. Robinson, Reagen & Young, plaintiff alleged that defendant violated the FDCPA by leaving a message for the debtor that did not state the caller was a debt collector. Defendant moved for summary judgment, arguing that the message was not a communication under the FDCPA. The court denied the motion, finding that, although the message did not specifically mention the debt or convey any information about the debt, it was a communication because it was part of the ongoing efforts to communicate about that debt.
In In Re Sekema, defendant filed a proof of claim on a time-barred debt. The court, on its own initiative, examined the proof of claim and found that it was facially invalid and clearly beyond the statute of limitation. Without a request from the debtor, the court, after considering the filing of the proof of claim in the context of the FDCPA, unilaterally decided to sanction defendant $1,000 for the filing.
In Wolfkiel v. Intersections Insurance Services, plaintiff alleged that defendant violated the TCPA by making telemarketing calls with a dialer and without consent. Defendant moved to strike the class allegations, arguing that plaintiff would be unable to certify the class under either Rule 23(b)(2) or (b)(3). The court granted the motion, first finding that an injunctive class under Rule 23(b)2(2) would be improper when the primary relief sought was a statutory penalty for each allegedly unlawful call. The court also found that there were too many fact specific inquiries required to certify the monetary class under Rule 23(b)(3) because it would require a fact specific inquiry into whether each class member attempted to revoke consent to be called.
In Donaca v. Dish Network, plaintiff brought a putative class under the TCPA alleging that defendant violated the TCPA when its agents made automated calls without consent. Defendant moved for summary judgment, which was granted in part. The court first found that only the person that physically placed the call “initiates” a call under the TCPA, though there was a disputed factual issue as to whether the caller was defendant’s agent sufficient to impose vicarious liability. The court also denied plaintiff’s motion for class certification, finding there were too many fact intense individual issues needed to ascertain the class members, and whether the calls were made with consent.
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