Every month or so, we review all Telephone Consumer Protection Act, 47 U.S.C. 227, et seq. (“TCPA”), decisions across the country to stay abreast of developments as we defend these cases throughout the United States. In this inaugural issue of the TCPA Case Law Update by Vedder Price, we offer summaries of some of the defense-friendly decisions entered in the past month and a half. The decisions are listed by issue category in alphabetical order. We plan to post similar summaries on a roughly monthly basis going forward. We hope you find this information useful as you ward off these pesky but nevertheless risky claims.

  • Advertisement: Dismissal granted with prejudice because a text message confirming a reservation is not an advertisement or a telemarketing message. Mackinnon v. Hof’s Hut Rests., Inc., 2017 U.S. Dist. LEXIS 195444, at *5–7 (E.D. Cal. Nov. 28, 2017).
  • Class certification denial: Class certification denied based on the absence of commonality because of the individualized nature of consent and revocation of consent. Ginwright v. Exeter Fin. Corp., 2017 U.S. Dist. LEXIS 194739, at *27–29 (D. Md. Nov. 28, 2017). Motion against class certification granted in fax case based on the lack of predominance and superiority in light of individualized analysis of consent after D.C. Circuit Bais Yaakov opt-out notice decision, which was controlling and, even if not controlling, was persuasive. Alpha Tech Pet, Inc. v. Lagasse, LLC, 2017 U.S. Dist. LEXIS 182499, at *11–23 (N.D. Ill. Nov. 3, 2017) (relying on Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017)).
  • Consent and revocation: Dismissal granted with prejudice because the plaintiff consented to receive autodialed text messages and her revocation messages failed to comply with the defendant’s instructions to text “STOP” to receive no further autodialed text messages. Viggiano v. Kohl’s Dep’t Stores, Inc., 2017 U.S. Dist. LEXIS 193999, at *14 (D.N.J. Nov. 27, 2017). Summary judgment granted because uncontroverted evidence showed the plaintiff consented to receive marketing text messages. Thomas v. Abercrombie & Fitch Stores, Inc., 2017 U.S. Dist. LEXIS 186945, at *13 (E.D. Mich. Nov. 13, 2017).
  • Discovery limited: Discovery beyond a single plaintiff barred where the plaintiff offered mere speculation about similarly situated facimile recipients. Steven A. Conner DPM, P.C. v. Optum360, LLC, 2017 U.S. Dist. LEXIS 203833, at *5 (E.D. Pa. Dec. 12, 2017). Motion to compel denied where the plaintiff’s counsel waited eight months to begin conferring over objections and filed a motion to compel after the discovery cutoff without explanation. Tillman v. Ally Fin., Inc., 2017 U.S. Dist. LEXIS 185900, at *11–13 (M.D. Fla. Nov. 9, 2017).
  • Personal jurisdiction not found: Motion to dismiss for lack of personal jurisdiction in facsimile case granted where the defendant rebutted allegations of doing business in Florida and committing tortious acts in Florida, and the plaintiff failed to submit evidence to contrary. A.S.B. Corp. v. Concordia Pharms., Inc., 2017 U.S. Dist. LEXIS 199883, at *8–10 (S.D. Fla. Dec. 1, 2017).
  • Standing lacking: Motion to dismiss for lack of standing granted where collection calls to the plaintiff, who claimed never to have consented and/or to have revoked consent to Automatic Telephone Dialing System (ATDS) calls, were not for telemarketing purposes. Shelby v. Ocwen Loan Serv., LLC, 2017 U.S. Dist. LEXIS 189995, at *8–10 (S.D. Cal. Nov. 16, 2017).
  • Stay granted: ATDS- and consent-related stays based on ACA v. FCC, No. 15-211 (D.C. Cir., argued Oct. 19, 2016), continue to pile up. Garvey v. Am. Bankers Ins. Co., 2017 U.S. Dist. LEXIS 204520, at *5 (N.D. Ill. Dec. 4, 2017); Kotlyar v. Univ. of Chi. Med. Ctr., 2017 U.S. Dist. LEXIS 197167, at *14 (N.D. Ill. Nov. 30, 2017); Cunningham v. Homeside Fin., LLC, 2017 U.S. Dist. LEXIS 197712, at *6 (D. Md. Nov. 30, 2017); Christianson v. Ocwen Loan Serv., LLC, 2017 U.S. Dist. LEXIS 191521, at *4 (D. Minn. Nov. 20, 2017), Mejia v. Time Warner Cable, Inc., 2017 U.S. Dist. LEXIS 190746, at *11–12 (S.D.N.Y. Nov. 17, 2017); Burnett v. Ocwen Loan Serv., LLC, 2017 U.S. Dist. LEXIS 185439, at *10 (N.D. Ill. Nov. 8, 2017).
  • Venue: Forum non conveniens transfer granted in ATDS case even though the defendant had its corporate headquarters in the forum. Guiette v. U.S. Bank N.A., 2017 U.S. Dist. LEXIS 198820, at *16 (D. Minn. Dec. 4, 2017).
  • Vicarious Liability: Dismissal granted without prejudice based on failure to plead vicarious liability. Naiman v. TranVia LLC, 2017 U.S. Dist. LEXIS 199131, at *38–39 (N.D. Cal. Dec. 4, 2017). Dismissal granted with prejudice based on failure to plead vicarious liability in second amended complaint. Linlor v. Five9, Inc., 2017 U.S. Dist. LEXIS 196266, at *9–10 (S.D. Cal. Nov. 19, 2017).
  • VoIP: Summary judgment granted to defendant because VoIP phone service is not a per se cellular service under the TCPA, evidence showed VoIP number was not assigned to a cellular service, and no evidence showed the plaintiff had communicated to the defendant that her VoIP telephone was connected to a cell phone. Breda v. Cellco P’ship, 2017 U.S. Dist. LEXIS 191186, at *7–15 (D. Mass. Nov. 17, 2017).