The Western District of Michigan recently denied a motion to certify a class after holding that the class was not ascertainable and the plaintiff had not offered persuasive evidence in support of the motion. Visser v. Caribbean Cruise Line, Inc., No. 13-1029, 2020 WL 415845 (W.D. Mich. Jan. 27, 2020).
The plaintiff alleged that Caribbean Cruise Line had violated the TCPA by using either an ATDS or an artificial or prerecorded voice without his prior consent. Specifically, he alleged that the call began with a prerecorded message that was followed by a live person who told him that he had won a free all-inclusive cruise. The plaintiff stated the caller told him that he had entered his phone number into a website called “leadpile.com.” Not believing this was true, the plaintiff told the caller that he had questions about the cruise. The caller then transferred the plaintiff to an agent who answered Plaintiff’s questions and provided details about the cruise.
After preliminarily approving a TCPA settlement arising out of allegedly unsolicited faxes, the Middle District of Florida recently reversed course and rejected the settlement in light of the Eleventh Circuit’s finding that the district court had erred in denying a new party’s request to intervene. See Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 16-1622, 2019 WL 4751799 (M.D. Fla. Sept. 30, 2019).
The plaintiffs (Technology Training Associates, Inc. and Back to Basics Family Chiropractic) sued the defendant (Buccaneers Limited Partnership) after they received allegedly unsolicited faxes offering Tampa Bay Buccaneers tickets. The plaintiffs further alleged that the faxes did not comply with the TCPA because they did not include the required opt-out notice.
In a unanimous decision earlier this month, the Ninth Circuit ruled that a provision in Montana’s Robocall Statute restricting political messages was unconstitutional. In doing so, the court overturned a district court ruling that found for the state on summary judgment.
In Victory Processing v. Fox, a political consulting firm filed suit against the Attorney General for the State of Montana, alleging that Montana’s prohibition against political robocalls violated its First Amendment rights. The statute at issue, Montana Code section 45-8-216, specifically prohibited five categories of robocalls, including those: “(a) offering goods or services for sale; (b) conveying information on goods or services in soliciting sales or purchases; (c) soliciting information; (d) gathering data or statistics; or (e) promoting a political campaign or any use related to a political campaign.” It was that final provision that Victory Processing alleged was violative of the First Amendment as an invalid content-based restriction on speech.
In a recent Northern District of Illinois case, a plaintiff’s TCPA claim was dismissed after the court found that the complaint did not contain sufficient facts to plausibly allege the defendant had used an ATDS. See Bader v. Navient Solutions, LLC, No. 18-1367, 2019 WL 2491537 (N.D. Ill. June 14, 2019). This is yet another example of a case in which a plaintiff failed to plead the use of an ATDS under post-ACA International v. Federal Communications Commission, 885 F.3d 687, 693 (D.C. Cir. 2018) standards. Continue reading
The Northern District of California recently denied a plaintiff’s motion for class certification after finding there was no “common method of proof” to determine which members of the class consented to Defendant’s calls. Revitch v. Citibank, N.A., No C 17-06907 WHA, 2019 WL 1903247 at *4 (N.D. Cal. Apr. 28, 2019). This decision is yet another example of how individualized issues of consent can defeat a plaintiff’s predominance requirement under Rule 23(b)(3). Continue reading
The Central District of California recently dismissed claims arising from allegedly unsolicited calls using an ATDS, finding that the plaintiff had waived her arguments by failing to address the defendant’s arguments in her response to the defendant’s motion to dismiss. See Hollis v. LVNV Funding, No. 18-1866, 2019 WL 1091336 (C.D. Cal. Jan. 2, 2019). The court found the dismissal justifiable given the plaintiff’s failure to plead her claim with specificity and her failure to cite to the specific portion of the TCPA that she believed had been violated. Id. at *5.