In Mey v. Frontier, plaintiff filed a putative class action, alleging that defendant violated the TCPA by calling her cell phone with a dialer and without consent. After plaintiff failed to accept defendant’s offer to settle plaintiff’s individual claims for the maximum statutory damages, defendant moved to dismiss, arguing the plaintiff’s individual claims were moot. The court denied the motion, finding that an offer of settlement, as opposed to an offer of judgment under Federal Rule of Civil Procedure 68, does not moot a claim even when it proposed to afford plaintiff everything she is asking for.
In Schools v. PMAB, plaintiff alleged that defendant violated the TCPA and FDCPA by continuing to call her cell phone with a dialer after being repeatedly told that the debtor and intended recipient of the calls could not be contacted at that number. Defendant moved to dismiss, arguing that plaintiff was incapable of plausibly alleging that the underlying debt owed by a third party unknown to plaintiff was in fact a consumer debt. The court rejected the motion, finding that in the context of a case where plaintiff is not the debtor, plaintiff need only allege facts sufficient to support an inference that the debt was a consumer debt, and that there was a reasonable inference that the debt was a consumer debt because defendant routinely collected medical debts.
In Ritchie v. Northern Leasing Systems, plaintiff alleged that defendant violated the FCRA by accessing plaintiff’s credit report. Defendant moved to dismiss, arguing that the credit report was pulled in furtherance of collection, and therefore that there was a permissible purpose. The court denied the motion, finding that there was a disputed factual issue at the pleading stage, as plaintiff specifically alleged that he had not completed a credit transaction with defendant.
In Geismann v. Zodoc, Inc., plaintiff filed a putative class action alleging that defendant violated the TCPA by sending two unsolicited fax advertisements. After plaintiff failed to accept defendant’s offer of judgment, defendant moved to dismiss, arguing the case was moot. The court agreed the claim was moot and granted the motion, finding the offer was for the full amount to which plaintiff was entitled and plaintiff could not require the offer to be extended to a non-certified class.
In Lang v. Automated Accounts, Inc., plaintiff alleged that defendant violated the FDCPA while sending a letter to plaintiff in two ways, and the parties filed cross motions for summary judgment. Plaintiff first alleged that the note sent to plaintiff dated four days prior to the actual mailing date to advise plaintiff of the trial date in an underlying collection lawsuit was a false and deceptive statement; defendant argued that the actual mailing date of the letter was immaterial. The court found any potentially deceptive statement was not material, as the mailing date would not have affected plaintiff’s ability to chose a response concerning the debt, and entered summary judgment in defendant’s favor. Plaintiff also alleged that defendant violated the FDCPA by sending the note directly to him when defendant knew plaintiff was represented by counsel. The court concluded that the trial setting notice was a communication under the FDCPA, but there was a disputed factual issue on when defendant became aware that plaintiff was represented by counsel.► Back to News & Resources