Our digital searches for new decisions under “TCPA or T.C.P.A.” have yielded some interesting (and, truth be told, lots of uninteresting) decisions about what we all know to be the TCPA. As it happens, though, they have also yielded decisions about a whole host of other “TCPAs,” for example the Trademark Cyberpiracy Prevention Act, the Tennessee Consumer Protection Act, the Texas Citizens’ Participation Act, and the New Jersey Toxic Catastrophe Prevention Act.
None of those TCPAs will be covered here, interesting though they may be. Nor will the following ten associations, alliances, advocates, or archeologists that also go by the name of “TCPA.” Unless, that is, they sue or are sued under the TCPA—which, at the rate things are going, is only a matter of time.
10. The Town and Country Planning Association
9. The Trusted Computing Platform Alliance n/k/a the Trusted Computing Group
8. The Texas Competitive Power Advocates
7. The Foundation for Theoretical and Computational Physics and Astrophysics
6. The Texas Crime Prevention Association
5. The Thai Crop Protection Association
4. The Turpanjian Center for Policy Analysis
3. The TI Calculator Programming Alliance
2. The Tennessee Council of Professional Archaeology
1. The Tantawangalo Catchment Protection Association
The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling. Immediately upon the federal government’s reopening, two additional petitions were filed. While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.
We previously discussed the growing trend of moving for TCPA class certification at the outset of litigation in order to prevent a defendant from trying to moot a named plaintiff’s claims by making a Rule 68 offer of judgment.
In Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.), the Middle District of Florida recently denied the plaintiff’s motion to certify a class of individuals who allegedly received “automated calls” to cell phones in violation of the TCPA. Plaintiff conceded that the motion was filed “solely to prevent any individual ‘buy off’ of the putative class representative.” The court did not take kindly to the preemptive motion. Indeed, it stated that the motion was motivated by the self-interest of counsel, and raised “serious public policy concerns about whether class action litigation should be driven by the interests of counsel rather than the issues of the client.” The Court ultimately denied the motion because the plaintiff had failed to perfect service of the complaint. But in doing so, it cautioned plaintiff’s counsel not to file another motion for class certification until he has “adequate facts and legal authority” to do so.
It is clear that the court was less than pleased with the preemptive class certification motion. Whether that plays a role in the outcome of the case remains to be seen.
A copy of the decision is available here.
Once again, a defendant has defeated a TCPA class certification motion on the ground that the liability inquiry would require individualized inquiries into class members’ consent to receive calls, precluding a finding of predominance.
In Connelly v. Hilton Grand Vacations Co., LLC, — F.R.D. —-, Case No. 12CV599 JLS (MDD), 2013 WL 5835414 (S.D. Cal. Oct. 29, 2013), plaintiffs sued a resort properties operator alleging that its third party marketer violated the TCPA by using an ATDS to make telemarketing calls to cell phones without obtaining prior express consent. Id. at *1. Plaintiffs sought to certify a sprawling class of all recipients of any of 37 million calls to 6 million different numbers over a four-year period, and sought statutory damages for this would-be class “that could total between $18 and $54 billion.” Id. at *1.