The 2016 amendments to the TCPA—which created an exemption for calls that are made “solely to collect a debt owed to or guaranteed by the United States”—have inadvertently reshaped the way that TCPA claims are litigated. While early decisions in Indiana, Alabama, and Florida rejected claims under the FCC’s proposed implementing rules because they never became effective, more recent decisions have focused on whether the exemption, and by extension the entire statute, violates the First Amendment. The first of those was the Fourth Circuit’s decision in American Association of Political Consultants v. FCC, which was soon followed by the Ninth Circuit and the Southern District of Florida.
Recently, the Middle District of Florida denied a motion for class certification, finding that the plaintiff had not sufficiently shown that the putative classes were ascertainable. Sliwa v. Bright House Networks, LLC & Advanced Telesolutions, Inc., No. 16-0235, 2019 WL 4744938 (M.D. Fla. Sept. 27, 2019).
Last year, this blog analyzed whether and when professional plaintiffs have standing to assert TCPA claims. A Massachusetts District Court recently examined that issue and held that a plaintiff’s standing “boils down to” how a plaintiff uses a given phone line.
In Rhodes v. Liberty Power Holdings, LLC, No. 18-10506, 2019 WL 4645524 (D. Mass. Sept. 24, 2019), the Court examined TCPA claims brought by two representatives of a putative class. One of them, Samuel Katz (“Katz”), fits the profile of a professional plaintiff, as he is a “frequent litigant in TCPA cases” who “closely tracks the telemarketing calls he receives.” Katz has served over two dozen TCPA demand letters and has filed at least nine TCPA lawsuits. In the present matter, he alleges that he received thirteen automated calls to a “residential landline that he maintained for emergencies.”
The Southern District of Florida recently granted a defendant’s motion for summary judgment on certain aspects of a plaintiff’s TCPA claim because plaintiff could not establish that defendant used an ATDS to call her cell phone. Johnson v. Capital One Services, LLC, No. 18-CV-62058, 2019 WL 4536998, *1 (S.D. Fla. Sept. 19, 2019). The case illustrates that a plaintiff must present concrete evidence demonstrating that a defendant used an ATDS in order to survive a motion for summary judgment. See id. at *3-4. A plaintiff cannot rely on purported “admissions” obtained from a call agent on the phone or plaintiff’s own subjective characterizations of the call. Id.
The Northern District of Texas recently dismissed a TCPA claim because “the Complaint nowhere alleges that he was called or texted using an ATDS.” The Court’s opinion emphasized that simply asserting that “the text messages were ‘automated’” was not sufficient to state a TCPA claim, and that plaintiffs cannot casually add new factual allegations in their oppositions to a motion to dismiss.
The Northern District of Illinois recently entered summary judgment against a group of plaintiffs because it found the system at issue was not an ATDS.
In Smith v. Premier Dermatology, No. 17-3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019), the Defendants used a proprietary “eRelevance” system to send medical marketing communications by text message to their clients’ customers or patients. Defendant eRelevance Corporation would have its clients provide their current and prospective customer contact information, which would be uploaded into the eRelevance system. Based on client-selected criteria, the system would create lists of contacts, and once eRelevance employees built a text-message marketing campaign, they could push a button to have the system automatically send text messages to each contact on the list.