Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment

A recent decision from the District of Maryland denied the Defendant’s motion for summary judgment because the Plaintiff had in the Court’s view raised a genuine issue of material fact regarding whether he had revoked his consent to receive automated debt-related calls. But the Court also denied the Plaintiff’s motion for class certification for the same reason, finding that individualized issues regarding the provision and revocation of that consent would predominate over any alleged common issues. See Ginwright v. Exeter Fin. Corp., No. 16-0565 (D. Md. Nov. 28, 2017). Continue reading   »

Second Circuit Rules That a Flu Shot Reminder Text Message Does Not Violate the TCPA

We have previously discussed the FCC’s 2012 TCPA exception for automated calls that deliver a “health care message” (the “2012 Health Care Exception”).  Now, for the first time, a federal appellate court has construed the scope of the 2012 Health Care Exception. In Latner v. Mount Sinai Health Sys., No. 17-99-cv (2d Cir. Jan. 3, 2018), the Second Circuit ruled that a healthcare provider did not run afoul of the TCPA by sending a patient a flu shot reminder text message after the patient had given consent to use his information—including his cell phone number—for “treatment” purposes. The decision is a favorable one for healthcare providers who utilize text messaging (or automated calls) to provide treatment reminders to patients. Indeed, the Second Circuit interpreted the 2012 Health Care Exception more broadly than the trial court had done in what was previously the leading decision applying the exception to reject TCPA claims attacking flu shot reminders, Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017). Zani is due to be argued before the Second Circuit on February 7th and the Second Circuit’s decision in Latner obviously bodes well for Rite Aid’s prospects of winning an affirmance on appeal. Continue reading   »

Court Finds Lawsuit Based on “Ruse,” Orders Plaintiff to Show Cause

A recent ruling from the Southern District of Ohio reveals the lengths to which some plaintiffs will go to manufacture TCPA claims – and how some courts are refusing to allow them to get away with such blatant manipulation. In Johansen v. National Gas & Electric LLC, No. 17-587, 2017 U.S. Dist. LEXIS 208878 (S.D. Ohio Dec. 20, 2017), the plaintiff alleged that the defendant violated the TCPA by calling him on three separate days even though his residential telephone number is on the National Do Not Call Registry. Before the court were two different motions filed by the defendant: a motion to compel arbitration and a motion to stay class discovery. Continue reading   »

Yet Another Court Rejects Yet Another Contrived Revocation of Consent Claim

Yesterday the District of New Jersey issued an important decision that reinforces—as we have explained before both here and elsewhere—that a plaintiff’s alleged revocation of consent must be reasonable rather than fanciful. Viggiano v. Kohl’s Department Stores, Inc., No. 17-0243 (D.N.J. Nov. 27, 2017).

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Northern District of Illinois Holds That Opt-Out Notices Are Not Required On Solicited Faxes In The Seventh Circuit

Following the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. Mar. 31, 2017), we explained on this blog and elsewhere that the issue of whether a fax advertisement is solicited or not would come back into play in many cases and make it much harder for the plaintiffs’ bar to certify a class of recipients. And that is precisely what occurred in a recent decision from the Northern District of Illinois in Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-cv-513 (N.D. Ill. Nov. 3, 2017): the court granted defendants’ motion to deny class certification. In the process, the court also slammed the door on several arguments proffered by plaintiffs’ counsel in an effort to evade the impact of Bais Yaakov.

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Missouri District Court Rules that App Developer Is Not Subject to Personal Jurisdiction Based on App Users’ Contacts with the Forum

A recent ruling from the Eastern District of Missouri provides encouraging news for app developers who may be sued under the TCPA for messages sent by users of their app. The court declined to exercise personal jurisdiction over the defendant, the photo sharing app developer Everalbum, Inc., because the text messages sent to plaintiffs in the forum state were sent by users of the app, and Everalbum itself directed no messages into the forum. See Figueroa v. Everalbum, Inc., No. 17-1393, 2017 WL 4574797 (E.D. Mo. Oct. 12, 2017). The decision is a favorable one for software companies whose users may initiate SMS communications with persons throughout the country, thus implicating the TCPA.

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District Courts Debate Whether Providing a Phone Number Establishes Consent

Multiple district courts have recently examined whether, and in what circumstances, providing one’s phone number suffices to establish consent to be called under the TCPA. The issue is complicated, turning on whether prior express consent must be in writing, a determination which, in turn, requires examination of whether the call in question constitutes “telemarketing” or “advertising.”

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