Author Archives: Bradley J. Andreozzi

N.D. Ohio Court Dismisses TCPA Claim, Finding Insufficient Allegations Regarding Consent

August 15, 2019
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Consent, Motion to Dismiss, Rule 8

The Northern District of Ohio recently granted a motion to dismiss a TCPA claim because the plaintiff failed to allege plausibly that he had not consented to receive the calls.  Whiteacre v. Nations Lending Corp., et al., No. 19-CV-809, 2019 WL 3477262 (N.D. Ohio Jul. 31, 2019).  The decision reinforces the requirement that to plead a TCPA claim, the plaintiff cannot rely on conclusory allegations that he never consented (or revoked any consent that was previously provided).  To state a plausible claim, the complaint must provide factual allegations, not mere labels or legal conclusions.

Plaintiff alleged that defendants Nations Lending Corporation and its alleged loan servicer, LoanCare, violated the TCPA when LoanCare called him through an automated voice messaging system.  Id. at *2.  The Plaintiff alleged that he “expressed his lack of consent to automated calls,” but the court noted that “Plaintiff does not describe how he ‘expressed his lack of consent,’ nor does he give any other details about the prerecorded calls.”  Id. at *3 (emphasis added).  Defendants moved to dismiss the TCPA claim, arguing that Plaintiff’s conclusory allegations failed as a matter of law.

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Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues

August 9, 2019
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Direct Liability, FCC, May 2013 Declaratory Ruling, Telemarketing, Vicarious Liability

The Western District of Oklahoma recently granted a plaintiff’s motion for summary judgment against NorthStar Alarm Services, LLC (“NorthStar”) in a certified class action.  The court held, in part, that NorthStar was vicariously liable for telemarketing calls that sales lead generator Yodel Technologies, LLC (“Yodel”) placed on its behalf.  Braver v. NorthStar Alarm Services, LLC, No. 17-cv-0383, 2019 WL 3208651, at *1 (W.D. Okla. July 16, 2019).  The case illustrates the factors that one court found relevant in a particular factual context when assessing vicarious liability issues related to a lead generator’s telemarketing calls. Continue reading   »

One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise

November 16, 2018
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Emergency Purpose Exception, Exemptions, Healthcare

Last week, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), a court rejected the argument – supported by previous cases – that pharmacy prescription reminder calls categorically come within the TCPA’s statutory emergency purposes exception. This decision creates uncertainty for all pharmacies and may chill their ability to provide important health care notifications to their patients. Continue reading   »

District Court Denies Class Certification Due to Individualized Issues of Consent

October 30, 2018
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Class Certification, Consent, Faxes, Opt-out Notices

A federal district court recently rejected a plaintiff’s bid at class certification in a TCPA case. See Bais Yaakov of Spring Valley v. ACT, Inc., No. CV 12-40088-TSH, 2018 WL 5281746 (D. Mass. Oct. 24, 2018) (available here). The decision provides a useful illustration of how individualized issues of consent may defeat a plaintiff’s attempt to show that common questions “predominate,” as required by Rule 23(b)(3). Continue reading   »

District Court Holds Article III Standing Allegation Not Required to Remove

September 27, 2018
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Automatic Telephone Dialing System, Standing, Text Messages

As we have frequently discussed, Article III standing is a recurring issue in TCPA cases. The Southern District of Florida recently added to the precedent in this area when it denied a plaintiff’s motion to remand, holding that defendants did not need to concede plaintiff’s Article III standing in their notice of removal. Gonzalez v. TCR Sports Broadcasting Holding, LLP, No. 18-cv-20048, 2018 WL 4292018 (S.D. Fla. Sept. 10, 2018). Continue reading   »

District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC

June 15, 2018
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2015 Declaratory Ruling, Automatic Telephone Dialing System

The District of Arizona recently became one of the first courts in the country to address the definition of an ATDS in light of the D.C. Circuit’s blockbuster ruling in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). Our previous client alert regarding ACA predicted that the decision would provide TCPA defendants with increased opportunities to defeat claims based on plaintiffs’ failure to prove the use of an ATDS. The Herrick v. GoDaddy.com, LLC case exemplifies how defendants can use the ACA decision to combat TCPA claims on this issue and hopefully foreshadows an emerging wave of favorable decisions. Continue reading   »

Second Circuit Again Rejects TCPA Claims Over Health Care Calls

February 23, 2018

Exemptions, Healthcare

The Second Circuit yesterday delivered a ruling that was widely expected but also widely welcomed by health care providers struggling to provide patients with important reminders while avoiding massive TCPA class action liabilities. Zani v. Rite Aid Hdqtrs. Corp., 17-1230-cv (Feb. 21, 2018), affirmed summary judgment in favor of Rite Aid over its prerecorded flu shot reminder calls. We wrote about the lower court decision in Zani here. The Second Circuit’s ruling came as no surprise because the same court last month ruled for another health care provider in rejecting TCPA claims over flu shot reminder texts. We analyzed that case, Latner v. Mount Sinai Health System, Inc., 879 F.3d 52 (2d Cir. 2018), here. Indeed, finding that the issues in Zani were “virtually identical” to those in Latner (Opinion, p. 5), the Second Circuit delivered its latest ruling in a non-precedential summary order. Continue reading   »

Second Circuit Rules That a Flu Shot Reminder Text Message Does Not Violate the TCPA

January 8, 2018
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Exemptions, Healthcare

We have previously discussed the FCC’s 2012 TCPA exception for automated calls that deliver a “health care message” (the “2012 Health Care Exception”).  Now, for the first time, a federal appellate court has construed the scope of the 2012 Health Care Exception. In Latner v. Mount Sinai Health Sys., No. 17-99-cv (2d Cir. Jan. 3, 2018), the Second Circuit ruled that a healthcare provider did not run afoul of the TCPA by sending a patient a flu shot reminder text message after the patient had given consent to use his information—including his cell phone number—for “treatment” purposes. The decision is a favorable one for healthcare providers who utilize text messaging (or automated calls) to provide treatment reminders to patients. Indeed, the Second Circuit interpreted the 2012 Health Care Exception more broadly than the trial court had done in what was previously the leading decision applying the exception to reject TCPA claims attacking flu shot reminders, Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017). Zani is due to be argued before the Second Circuit on February 7th and the Second Circuit’s decision in Latner obviously bodes well for Rite Aid’s prospects of winning an affirmance on appeal. Continue reading   »

Court Finds Lawsuit Based on “Ruse,” Orders Plaintiff to Show Cause

January 5, 2018
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Abusive Lawsuits, Do-Not-Call Rules

A recent ruling from the Southern District of Ohio reveals the lengths to which some plaintiffs will go to manufacture TCPA claims – and how some courts are refusing to allow them to get away with such blatant manipulation. In Johansen v. National Gas & Electric LLC, No. 17-587, 2017 U.S. Dist. LEXIS 208878 (S.D. Ohio Dec. 20, 2017), the plaintiff alleged that the defendant violated the TCPA by calling him on three separate days even though his residential telephone number is on the National Do Not Call Registry. Before the court were two different motions filed by the defendant: a motion to compel arbitration and a motion to stay class discovery. Continue reading   »

Missouri District Court Rules that App Developer Is Not Subject to Personal Jurisdiction Based on App Users’ Contacts with the Forum

November 7, 2017
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Apps, Direct Liability, Jurisdiction, Text Messages

A recent ruling from the Eastern District of Missouri provides encouraging news for app developers who may be sued under the TCPA for messages sent by users of their app. The court declined to exercise personal jurisdiction over the defendant, the photo sharing app developer Everalbum, Inc., because the text messages sent to plaintiffs in the forum state were sent by users of the app, and Everalbum itself directed no messages into the forum. See Figueroa v. Everalbum, Inc., No. 17-1393, 2017 WL 4574797 (E.D. Mo. Oct. 12, 2017). The decision is a favorable one for software companies whose users may initiate SMS communications with persons throughout the country, thus implicating the TCPA.

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