The Northern District of Texas handed down a decision exploring the jurisdictional limitations on TCPA plaintiffs’ ability to hale out-of-state defendants into a plaintiff’s local federal court.
The case, Horton v. Sunpath, Ltd., involved a Texas resident (Lucas Horton) who launched a TCPA suit against a Massachusetts-based corporation (Sunpath). Horton alleged that Sunpath’s agent, Northcoast Warranty Services, placed several calls to his cell phone using an automatic telephone dialing system and pre-recorded messages, despite the number’s listing on the National Do-Not Call Registry. No. 3:20-cv-1884-B-BH, 2021 WL 982344, at *1 (N.D. Tex. Feb. 16, 2021). On the calls, Horton stated, Northcoast encouraged him to purchase an auto service policy administered by Sunpath. Id. The calls continued for about three months until Horton purchased a policy from Sunpath in May 2020. Id. Horton filed suit against Sunpath about a month later in the Northern District of Texas. Id.
Recently, the Northern District of Illinois dismissed a TCPA putative class action without prejudice, finding that faxes inviting recipients to attend free continuing education veterinary seminars did not constitute advertisements on their face because they did not promote products or services and they were not sufficiently alleged to be a pretext for an underlying commercial purpose. Ambassador Animal Hosp., Ltd. v. Elanco Animal Health, Inc., No. 20-cv-2886, 2021 WL 633358 (N.D. Ill. Feb. 18, 2021).
In Cunningham v. Lester, —F.3d—, 2021 WL 821467 (4th Cir. Mar. 4, 2021), the Fourth Circuit reiterated that the doctrine of sovereign immunity is alive and well and very much applicable to putative TCPA claims, and that crafty plaintiffs cannot artfully plead around the doctrine’s reach.
The Affordable Care Act (ACA) contains a provision requiring the U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) to “establish a system” so applicants “receive notice of eligibility for an applicable State health subsidy program.” 42 U.S.C. §§ 18083(a), (b)(2), (e). CMS contracted with private company GDIT to fulfill CMS’s requirement that it contact individuals to inform them of their eligibility for participation in the subsidized health insurance plans offered through ACA’s health insurance exchanges. Defendants were individuals working for CMS in connection with the CMS-GDIT contract. Defendants instructed GDIT to prerecord a message and deliver it to approximately 680,000 individuals who had not consented to receive the message.
Recently, the Eastern District of Missouri added to the split among courts deciding whether they can hear TCPA claims alleging robocall violations that occurred when the now-invalidated government debt exception was part of the statute. As we have previously reported on here, some district courts have joined Creasy v. Charter Communications, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020), in holding that subject matter jurisdiction is lacking in such cases, but a growing number—now including the Eastern District of Missouri—have disagreed. Miles v. Medicredit, Inc., No. 4:20-cv-001186, 2021 WL 872678 (E.D. Mo. Mar. 9, 2021).
The scenario at issue in this case is a familiar one. Defendant Medicredit is a medical debt collector. Plaintiff Miles contended that Medicredit violated the TCPA’s prohibition on making calls using an ATDS or an artificial or prerecorded voice by placing six such calls to his cell phone, without his consent, in January and February 2018. Not so, Medicredit responded, for the prohibition at issue, 47 U.S.C. § 227(b)(1)(A)(iii), was unconstitutional at the time Medicredit allegedly made the calls to Miles because the provision contained an exception, for calls to collect government debts, that the Supreme Court later invalidated as a content-based restriction on speech that violated the First Amendment. Thus, Medicredit argued in its motion to dismiss that the court, having no statutory basis to enforce the alleged violations, lacked subject matter jurisdiction to hear the suit.
The Southern District of California recently dismissed the TCPA case Hildre v. Heavy Hammer, Inc., No. 3:20-cv-00236, 2021 WL 734431 (S.D. Cal. Feb. 25, 2021), for the plaintiff’s failure to adequately allege that the defendants had used an automatic telephone dialing system (“ATDS”) when placing calls.
The plaintiff alleged that the defendants called him using an ATDS without first obtaining his consent. Specifically, he claimed that the out-of-state defendant called him twice using a California telephone number. After the first call, plaintiff claimed that he asked to be removed from the call list. When plaintiff received the second call, he alleges that there was a “noticeable pause” after he answered.
The Seventh Circuit last week affirmed its holding in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020) that, to qualify as an “automatic telephone dialing system” (ATDS) under the TCPA, a device or calling system must have the ability to randomly or sequentially generate the phone numbers that it calls. As we reported here and here, this interpretation of the statute’s ATDS definition excludes systems and devices that place calls from a premade list of numbers, such as a list of customers’ mobile numbers. Courts remain divided on how to interpret the ATDS definition and the Supreme Court is expected to address the issue in a case that is currently before it, Facebook, Inc. v. Duguid.
TCPA Blog’s Mike Daly authored an article for the American Bar Association’s Consumer Litigation Committee titled, “Senescence and Sensibility: Will the Supreme Court Mothball the TCPA?” that discusses developments around TCPA’s autodialer restriction.The article addresses the dispute between courts over what qualifies as an ATDS and the impact the dispute has had on businesses trying to comply with the statue when its scope varies between circuit courts.The article also highlights how what constitutes an ATDS may finally be resolved in Facebook v. Duguid and what the case’s decision could mean for pending cases.
The full article is available for American Bar Association’s Consumer Litigation Committee subscribers.