A recent denial of a professional plaintiff’s motion for class certification shows that, irrespective of whether such plaintiffs have standing to sue on their own behalf, courts are increasingly skeptical that contrived claims are amenable to class treatment. See Hirsch v. USHealth Advisors, LLC, No. 4:18-CV-00245-P, 2020 WL 7186380, at *1 (N.D. Tex. Dec. 7, 2020).
On the same day last week, two different judges in the Middle District of Florida issued divergent decisions regarding the effect of the Supreme Court’s holding in Barr v. AAPC, 140 S. Ct. 2335, 2347 (2020). One followed the Eastern District of Louisiana’s groundbreaking decision in Creasy v. Charter Communications and the Northern District of Ohio’s subsequent decision Lindenbaum v. Realgy. But the other is notable because it broke with those decisions, marking the first time a court has rejected them. Compare Hussain v. Sullivan Buick Cadillac-GMC Truck, No. 20-0038, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020) (following Creasy) with Abramson v. Fed. Ins. Co., No. 19-2523, 2020 WL 7318953 (M.D. Fla. Dec. 11, 2020) (rejecting Creasy).
The FCC in 2016 determined that the federal government was not a “person” subject to the TCPA, and that by extension, federal contractors working within the scope of their delegated authority were also not bound by TCPA restrictions. This Broadnet Declaratory Ruling was the subject of at least one prominent dissent. At the time, then-Commissioner Ajit Pai observed: “[I]t is odd to suggest that a contractor’s status as a ‘person’ could switch on or off depending on one’s behavior or relationship with the federal government.” The National Consumer Law Center and Professional Services Council both filed petitions for reconsideration and this issue was again joined on December 14, 2020, when the FCC issued a Reconsideration Order stating that government contractors – but not federal or state governments themselves – “must obtain prior express consent to call consumers” when making calls on behalf of the government.
Last week, the District of Nevada contributed to a growing consensus among Ninth Circuit district courts that TCPA liability generally does not extend to companies that produce equipment used to place unlawful calls—such as messaging platforms and contact lists— because the entities that use such equipment usually do so on behalf of another company, and not the equipment provider.
The Eleventh Circuit recently affirmed the entry of summary judgment in favor of a student loan servicer and its affiliate, finding that their nearly 2,000 calls did not violate the TCPA because the plaintiff had renewed his consent by submitting an online demographic form. See Lucoff v. Navient Sols., LLC, No. 19-13482, 2020 WL 7090315 (11th Cir. Dec. 4, 2020).
The history of this case is somewhat winding. In 2010, the plaintiff was part of a class action against one of the defendants. Id. at *1. As part of the settlement terms, class members who did not submit revocation request forms were deemed to have provided prior express consent to receive calls regarding their student loans. Id. The plaintiff did not submit a revocation request. Id.
The Tenth Circuit kicked off the holiday season with a little TCPA humor. In Rivera v. Exeter Finance Corp., No. 20-1031, 2020 WL 6844032, at *1 (10th Cir. Nov. 23, 2020), the Tenth Circuit Court of Appeals was confronted with a case about “[p]esky robocalls: we all get them, we all hate them, and yet we cannot seem to get rid of them, no matter how many times we unsubscribe, hang up, or share choice words with the machine on the other end of the line.” The plaintiff evidently “share[d] this sentiment” with Justices Tymkovich, Briscoe, and Murphy, but also figured that he was “not the only one suffering from [defendant]’s vexatious robocalls” and brought a putative class action. Id.
As readers of this blog may recall, the Middle District of North Carolina recently denied Dish Network’s request for reversion of $11 million in unclaimed funds from the jury-awarded damages in a TCPA class action trial. See Krakauer v. Dish Network, LLC, No. 14-0333 (M.D.N.C. Oct. 27, 2020). Noting that the TCPA is a deterrence statute, the District Court held that allowing unclaimed funds to revert to the defendant would undermine the function of the damage award, and it determined that such funds should either escheat to the government or be donated to an appropriate charity whose work is related to the objectives of the TCPA. But the District Court did not decide the ultimate recipient of the unclaimed funds, appointing a special master to identify and evaluate potential cy pres recipients and make recommendations to the court.
Please join us for a lively roundup of recent developments and hot topics hosted by Faegre Drinker’s TCPA team. Our attorneys will convene government and industry professionals to offer insight and perspective on a variety of issues, including the definition of an autodialer, trends in defending and settling TCPA cases, and the regulatory implications of the election and pandemic, among other much-buzzed-about subjects. In addition to members of Faegre Drinker’s TCPA team, our three panels will feature these guest speakers:
Tomorrow morning, the Supreme Court will hold oral argument via teleconference in Facebook v. Duguid, which concerns the proper interpretation of the TCPA’s definition of an “automatic telephone dialing system.” The question presented is “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” You can listen to the argument live at various media outlets and later on the Court’s website.