On April 1, 2020, nine amicus briefs were filed in Barr, et al. v. American Association of Political Consultants, et al., currently pending in the Supreme Court, in support of an attempt to invalidate the TCPA’s ban on autodialed calls and texts to cellphones. The ban generally restricts persons or entities from placing automated calls or texts to cell phones without the recipients’ prior express consent. A host of businesses and associations affected by the ban—including Facebook and businesses from the energy, financial services, and tech industries—filed the amicus briefs and argued the TCPA’s blanket ban on autodialed calls and texts to cell phones should be struck down.
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.
The Eastern District of Pennsylvania recently granted a motion to dismiss in a putative TCPA class action because the plaintiff failed to plausibly allege that the fax at issue constituted an unsolicited advertisement. Mauthe v. Spreemo, Inc., No. 18-CV-1902, 2019 WL 342715 (E.D. Pa. Jan. 28, 2019). The outcome hinged on the specific content of the fax at issue. Continue reading