Mark E. Ellis's Recent
TCPA Litigation

TCPA Victory for Collection Agency Attracts National Attention

Mark E. Ellis“GREAT WIN!” is how the National Law Review characterized the granting of a summary judgment Oct. 9, 2019 in favor of an Ellis Law Group, LLP client accused of violating the Telephone Consumer Protection Act (TCPA). The ruling in Ammons v. Diversified Services, Inc. is the first by a district court within the Ninth Circuit to further define Automatic Telephone Dialing System (ADTS) as articulated in the 2018 decision Marks v. Crunch by the Ninth Circuit Court of Appeals. According to Marks, ADTS "means equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person.)”

In Ammons, the plaintiff contended that HCI conformed to the Marks definition of ADTS because it could store and dial numbers. Defense attorneys Mark E. Ellis and Anthony Valenti argued that the system was manual because the numbers generated were not dialed automatically. Rather, a human being must physically click a dialogue box to initiate each call. The court rejected the plaintiff’s counterargument that the human role of “clicker agent” was so minimal that it was created to avoid TCPA liability. It concluded:

LiveVox HCI goes far beyond merely triggering a system to run automatically. It requires human interaction to initiate each call. The Court agrees with other courts to consider the LiveVox HCI system and, applying Marks, finds that the clicker agent’s role precludes LiveVox HCI from qualifying as an ATDS.

The website Inside ARM characterized the decision by the U.S. District Court for the Central District as not only “a big win for users of HCI,” but one that “stands tall as the first decision within the Ninth Circuit to delimit the extent of Marks.”

Unanimous Jury Verdict in Defense of Collection Agency

Mark E. Ellis won a 8-0 jury verdict in federal district court April 17, 2017 defending a collection agency accused of violating the federal Telephone Consumer Protection Act (TCPA), the federal Fair Debt Collection Practices Act (FDCPA) and California’s Rosenthal FDCPA.

In Littlejohn v. Financial Credit Network, Inc., the plaintiff claimed the defendant violated the TCPA by automatically dialing his cell phone 75 times over 19 months without express consent. The plaintiff also claimed the number of calls constituted harassment under the FDCPA and Rosenthal FDCPA. The defense successfully argued that the calls were made with consent conferred by Littlejohn’s creditor.

Precedent holds that a debt collector acting on behalf of a creditor who has been provided consent obtains that consent. Although Littlejohn claimed he revoked consent on January 2015, no record of a call exists, either from Littlejohn to the defendant or from the defendant to Littlejohn.

The jury also found that the 75 calls placed to Littlejohn did not constitute harassment under FDCPA and Rosenthal FDCPA because none were answered. The statutes stipulate that a high frequency of calls is only actionable when it demonstrates an intent to annoy, abuse or harass. The case was tried in U.S. District Court, Central District of California, John A. Kronstadt presiding.

Mark Ellis Prevails in Ninth Circuit Appeal of TCPA Class Action

The U.S. Ninth Circuit Court of Appeals upheld on January 31, 2017 a district court summary judgment in favor of the defendant in Van Patten v. Vertical Fitness Group, LLC, a class action arising from the Telephone Consumer Protection Act (TCPA).

At issue was whether a fitness gym could solicit former members using telephone numbers given on membership application forms. The class action, defended at trial by Mark E. Ellis and in appellate court by Mr. Ellis, sought damages on behalf 30,000 former gym members who received automatically-dialed phone calls and texts from Vertical Fitness.

Plaintiff’s counsel argued on appeal that a signature and telephone number on a membership form did not constitute express consent to receive solicitations. And even if it did, express consent was revoked when the plaintiff terminated his membership three years prior to the solicitations.

The Ninth Circuit agreed with the defense that 1) solicitations were within the scope of consent expressed by a signed membership application and 2) revocation of that consent needed to be expressed verbally or in writing by Van Patten to Vertical Fitness.

Defense Prevails in TCPA and FDCPA Class Action

Defense counsel Mark Ellis won a summary judgment Oct. 3, 2016 in Goodson v. Designed Receivable Solutions Inc., a class action trial arising from alleged violations of the federal Telephone Consumer Protection Act (TCPA), the federal Fair Debt Collection Practices Act (FDCPA), and California’s Rosenthal FRCPA.

Allegedly the defendant violated the FDCPA and Rosenthal FDCPA by telephoning the plaintiff’s cell phone several times to collect a debt already paid. Moreover, the calls allegedly violated the TCPA because they were made using an "automatic telephone dialing system."

U.S. District Court Judge James V. Selna ruled that 1) the TCPA claim failed because the defendant was given permission to call the plaintiff and 2) the FDCPA and Rosenthal claims failed because defendant's calls did not constitute abusive, harassing, or oppressive practice.

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