As we have previously noted, several courts in the Middle District of Florida have made it abundantly clear that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempt to “pick-off” a named plaintiff. See Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.) (J., Merryday); Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.) (M.J., Spaulding). Last week, the court reiterated this stance yet again. See Dickerson v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014) (J. Moody).
The FCC is not the only federal agency tasked with regulating telephone calls. The FTC also regulates telephone calls pursuant to the Telemarketing Sales Rule (“TSR”) (16 C.F.R. § 310 et seq.). And while the scope of the TCPA and the TSR differs, the two sets of regulations overlap in a key area—prerecorded calls. See 47 C.F.R. § 227(b)(1); 16 C.F.R. § 310(b)(iv). As we have noted in a previous post, these regulations are not entirely consistent.
The District of Massachusetts recently entered summary judgment in favor of a plaintiff after deferring to FCC statements that purport to expand the definition of an automated telephone dialing system (“ATDS”) to include predictive dialers that can dial stored numbers without human intervention. See Davis v. Diversified Consultants, Inc., No. 13-10875 (D. Mass. June 27, 2014).
The Eastern District of New York recently denied a motion to dismiss and found that the plaintiff’s claims were not precluded by a different court’s ruling that the same claims against the same defendants had been mooted by an offer of judgment. See Bank v. Spark Energy Holdings, No. 13-6130, 2014 U.S. Dist. LEXIS 84493 (E.D.N.Y. June 20, 2014); Bank v. Spark Energy Holdings, No. 11-4082, 2013 U.S. Dist. LEXIS 150733 (S.D. Tex. Oct. 18, 2013).
On June 25, Judge Michael Anello of the Southern District of California granted summary judgment in favor of defendant Sharp Healthcare (“Sharp”) in Hudson v. Sharp Healthcare, 13cv1807-MMA, a purported class action alleging two counts under the TCPA (Count I for a negligent violation and Count II for a knowing/willful violation) regarding automated calls concerning unpaid hospital bills, ending that matter absent an appeal.
The original complaint was filed on August 2, 2013, and was comprised primarily of legal assertions (including citations to case law) and boilerplate asserting that defendant had violated the TCPA. The only purported fact alleged was that “Plaintiff was admitted to Sharp on or around September 25, 2012 and may have given them her cellular telephone number ending in 5954 at that time so Sharp could manually contact her about her treatment,” and that she did not consent to receiving autodialed calls. Complaint ¶¶ 14-15 [Dkt. No. 1] (emphasis added). The plaintiff later was granted leave to file an amended complaint that hedged her claims, alleging that if plaintiff provided her number to Sharp, “it was provided to Defendant solely to allow Defendant to contact Plaintiff about medical treatment follow-up” and reiterated that she “did not provide prior express consent to Defendant to be called by an [ATDS].” First Amended Complaint, ¶ 13 [Dkt. No. 29-2].
In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.
Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).