Fourth Circuit Affirms Exclusion of Ascertainability Expert and Denial of Certification

The Fourth Circuit, on appeal from the Eastern District of Virginia, recently upheld the denial of class certification due to the unreliability of the plaintiff’s expert opinion regarding the ascertainability of putative class members. See Davis v. Capital One N.A., No. 22-0903, 2025 WL 2445880 (4th Cir. 2025).

The plaintiff allegedly received multiple prerecorded messages to his cell phone regarding an unpaid debt owed by a different consumer from whom the phone number had been reassigned. The calls allegedly continued even after the plaintiff called to inform Capital One that it had been calling the wrong person. The plaintiff eventually filed suit, asserting claims on behalf of himself and a nationwide class of unnamed consumers who had also received calls to reassigned numbers.

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Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages

A Florida federal court recently dismissed Do-Not-Call claims, holding that “a text message is not a ‘telephone call.’” Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025).

In Davis, the plaintiff alleged that CVS sent him unwanted text messages in violation of regulations prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2).

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Florida Federal Court Finds Air Conditioning Company’s Pre-Hurricane “Here for You” Text Was a Solicitation

A Florida federal court recently denied a defendant’s motion for summary judgment in a putative class action, finding that the text message at issue was not “purely informational” but rather a solicitation for purposes of the plaintiff’s do-not-call claim. Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025).

Shortly before Hurricane Ian’s landfall in Florida, the plaintiff received the following text:

Mario’s AC is reminding you to consider flipping off the breaker to your AC unit during a hurricane. We are here for you. [Phone Number] STOP to end.

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District Court Limits the Impact of a “Stop” Text

The Northern District of Illinois recently validated a company’s narrow interpretation for the scope of communications a party opts out of when it revokes consent under 47 C.F.R. § 64.1200(d). In Stamper v. Manus-Northwestern Oral Health Center, Ltd., the court granted a defendant’s motion to dismiss confirming that the plaintiff did not adequately revoke consent to receive all marketing communications from the defendant after replying “stop” to one message instead of “STOPALL” as instructed to cease all communications. 2025 WL 2044093 (N.D. Ill. July 17, 2025). For companies with multipronged or multichannel communication streams, this decision provides validation that an opt-out from one category of message or specific campaign need not be read as a bar to all messages.

In Stamper, the plaintiff alleged they had “received texts advertising [defendant]’s services on at least a monthly basis from September 2022 to January 2023, despite repeatedly responding “stop” in an attempt to unsubscribe in the manner the messages instructed.” Id. at 1. The texts included notifications of open appointments, recall messages and reminders that a person was due for an appointment. Some of the texts were addressed to different individuals for whom the plaintiff had provided their number as the point of contact.

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McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts

A federal court recently dismissed Do-Not-Call claims after finding that, “based on a plain reading of the TCPA and its implementing regulations,” 47 U.S.C. § 227(c) “does not apply to text messages.” Jones v. Blackstone Med. Servs., LLC, No. 1:24-cv-01074, 2025 WL 2042764 (C.D. Ill. July 21, 2025).

In Jones, the plaintiffs alleged that they had received telemarketing texts about the defendant’s home sleep tests, despite their having placed their numbers on the National Do-Not-Call Registry and/or asking to be placed on the defendant’s Do-Not Call list. (Although they also made passing references to “calls” as well as “texts,” the court found that those allegations were neither well pleaded nor the crux of the claim.) They filed suit under 47 U.S.C. § 227(c), which concerns violations of Do-Not-Call rules.

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FCC Ends Quest to Amend its Definition of “Prior Consent” in the Wake of Eleventh Circuit Ruling

On July 14, 2025, the FCC issued an Order halting a proposed amendment to 47 CFR § 64.1200(f)(9) that would have narrowed the scope of communications that may be sent after a caller gives “prior express consent.” The FCC’s Order follows the recent decision in Insurance Marketing Coalition, Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025), which vacated a change to that rule adopted by an FCC Order issued in late 2023.

Prior to the 2023 FCC Order, the phrase “prior express consent” under this regulation had the same meaning as the common law concept of consent. Ins. Mktg. Coal., 127 F.4th at 313. Specifically, “permission that [was] clearly and unmistakably granted by actions or words, oral or written” before the marketing call was received. Id. (internal citations omitted)

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Sixth Circuit Finds That High Volume of Calls Does Not in and of Itself Make TCPA Claims Plausible

The Sixth Circuit recently affirmed the dismissal of a serial pro se litigant’s TCPA claims for failure to allege enough factual support. The case provides a useful primer on what a plaintiff must allege to state a claim under the TCPA’s autodialer or artificial/prerecorded voice provisions.

In Fluker v. Ally Fin., Inc., 2025 WL 1827747, at *1 (6th Cir. July 2, 2025), the plaintiff alleged violations of the TCPA arising from hundreds of debt collection calls that had allegedly been placed without his prior consent. The trial court held that Fluker had “fail[ed] to plausibly allege that Ally [Financial] made the phone calls using either (1) an automatic telephone dialing system, or (2) an artificial or prerecorded voice.” Id. at *2 (citing Fluker v. Ally Fin. Inc., 2023 WL 8881154, at *2 (E.D. Mich. Dec. 21, 2023)). The Sixth Circuit reviewed that dismissal de novo, finding that neither claim had been properly pleaded.

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Court Finds TCPA’s Fax Restrictions Do Not Apply to Online Services; Denies Class Certification Because Plaintiff Could Not Tell How Each Class Member Received Fax

The U.S. District Court for the Eastern District of Pennsylvania recently denied a plaintiff’s motion to certify a 25,000-member class in a TCPA fax action. See Fischbein v. IQVIA, Inc., No. 19-5365 (E.D. Pa. June 5, 2025).

Plaintiff alleged that IQVIA, a research organization that collects health data, faxed advertisements to over 25,000 health care providers without prior express permission. While analyzing whether members of the proposed class would be ascertainable, the court addressed — for the first time in the Third Circuit — the question of “whether the TCPA’s protection is limited to faxes received on stand-alone fax machines or extends to faxes received by way of online fax services.” The court sided with other circuit courts that have addressed this issue, concluding that “the plain language of the TCPA protects only those who receive unsolicited advertisements on a stand-alone fax machine” — not through an online fax service. (Note that this issue was also addressed in a recent Colorado decision.)

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FCCPA Amended to Expressly Allow After-Hours Debt-Collection Emails

Florida’s governor recently signed Senate Bill 232, amending Fla. Stat. § 559.72(17). Subsection 17 prohibits certain debt-collection “communications” to debtors between 9 p.m. and 8 a.m. Senate Bill 232 now clarifies that Subsection 17 does not apply to emails, ending the ambiguity that litigants faced due to differing court decisions. Given the proliferation of debt collection emails — which are used by 74% of debt collectors — Senate Bill 232’s enactment cuts off a significant source of potential liability.

Read the full article on the Faegre Drinker website

Supreme Court Decides McLaughlin Chiropractic Associates v McKesson Corp.

On June 20, 2025, the U.S. Supreme Court decided McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., No. 23-1226, holding that the Hobbs Act does not bind district courts in civil enforcement proceedings to a federal agency’s interpretation of a statute.

The Telephone Consumer Protection Act (TCPA) prohibits a business from sending an “unsolicited advertisement” by fax to a “telephone facsimile machine” absent an opt-out notice informing recipients that they can choose not to receive future faxes. A recipient of a fax that lacks the required opt-out notice may sue the sender for damages and injunctive relief. The TCPA sets a floor of $500 in damages for each unlawful fax.

Read the full article on the Faegre Drinker website.