Matthew J. Adler

Matthew J. Adler

Matthew Adler is a trusted advocate and counselor who litigates complex commercial disputes and putative class actions for companies in the retail, technology, insurance, automotive, construction and telecommunications industries. He is known to be a persuasive writer and even-keeled problem-solver who provides practical, cost-effective solutions for his clients. Matt has defended numerous class actions, in state and federal court, involving claims of false advertising, fraud, breach of contract, breach of warranty and alleged violations of the Telephone Consumer Protection Act (TCPA) and of California’s consumer protection statutes, the Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumers Legal Remedies Act (CLRA).

View the full bio for Matthew J. Adler at the Faegre Drinker website.

Articles by Matthew J. Adler:


Missouri Federal Court Dismisses Another TCPA Claim Due to Traceability Issues

A federal judge in the United States District Court for the Eastern District of Missouri recently dismissed a claim alleging multiple violations of the TCPA’s do-not-call regulations upon finding that plaintiffs had failed to sufficiently plead the traceability element of standing. Thompson v. Vintage Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052 (E.D. Mo. Feb. 8, 2024). This decision follows a similar ruling issued by the same judge just last month in another case involving the same plaintiffs (discussed here).

In the Vintage Stock case, the plaintiffs’ complaint asserted three counts: (1) violation of “the Federal Do Not Call List statute and regulations”; (2) violation of 47 C.F.R. § 64.1200(d); and (3) violation of Missouri’s no-call-list statute, MRS § 407.1098.

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Washington Federal Court Finds Sufficient Allegations of Prerecorded Calls But Dismisses Claims for Treble Damages and Injunctive Relief

Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).

The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.

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Recent Ninth Circuit Opinions Address Standing and the Meaning of ‘Automatic Telephone Dialing System’

The Ninth Circuit recently issued two noteworthy TCPA decisions.  Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space:  the definition of “automatic telephone dialing system” (“ATDS”).  Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers.  See Borden, 2022 WL 16955661, at *1.

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FCC Acts to Curb Foreign-Originated Illegal Robocalls, Imposes Several New Requirements on Gateway Providers

Recently, on May 20, 2022, the Federal Communications Commission (“FCC”) issued a Report and Order (“Order”), as well as a Further Notice of Proposed Rulemaking (all available here), with a plain objective:  to “take further steps to stem the tide of foreign-originated illegal robocalls and seek comment on additional ways to address all such calls.”  Order1.  As stated by the FCC, “reducing illegal robocalls that originate abroad is one of the most vexing challenges we face in tackling the problem of illegal robocalls.”  Id.  The Order was adopted by a unanimous, 4-0 vote by the FCC after it had received comments over the last nine months on various topics, including whether so-called “gateway providers” should be required to authenticate caller identification information and implement other efforts to reduce the number of illegal prerecorded and/or artificial voice “robocalls” originating overseas.

A “gateway provider” is a U.S.-based provider that acts as an intermediary for an international call by receiving a call directly from a foreign provider before transmitting that call downstream to other U.S.-based providers for termination.  Order ¶ 25.  This definition is not static but rather one that applies on a call-by-call basis, i.e., a provider is a gateway provider—and subject to the FCC’s new Order—only for those calls in which it acts as a gateway provider.  Id. ¶ 28.  Per the FCC, commenters “overwhelmingly” supported the imposition of additional requirements on gateway providers in order to “stop the flood of foreign-originated illegal calls.”  Id. ¶ 21.

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Single Fax Received by E-Mail Deemed Insufficient to Confer Article III Standing

As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.

But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.

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FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers

On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”

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Florida Federal Court Stays Putative Class Action to Await Guidance from the FCC and Eleventh Circuit as to What Constitutes an ATDS

It can fairly be said that the statutory definition of “automatic telephone dialing system” (“ATDS”) has generated far more questions than answers—for courts and litigants alike. This is especially true in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), where the D.C. Circuit set aside the FCC’s sweeping interpretation of the ATDS definition, and thus handed the baton back to the Commission to provide guidance on what is (and is not) an ATDS. But almost two years later, the FCC has yet to issue its ruling.

In the many TCPA cases that turn on the definition of ATDS, defendants may wish to file a motion to stay the action so that the court can await guidance from the FCC’s anticipated ruling on this issue. Indeed, over the course of the last year, multiple federal judges, at least in Florida, have been willing to grant such motions, particularly because the ATDS definition is also center stage in an appeal pending before the Eleventh Circuit. See Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499 (11th Cir. filed Oct. 24, 2018).

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Florida Federal Court Rejects ATDS Allegations, Grants Motion to Dismiss

In a text message case, the U.S. District Court for the Southern District of Florida recently granted Atlantic Coast Enterprise, LLC’s (“Ace”) motion to dismiss upon finding that the plaintiff had failed to plausibly allege Ace’s use of an automatic telephone dialing system (“ATDS”). See Turizo v. Jiffy Lube International, Inc., et al., No. 19-61140, 2019 WL 4737696 (S.D. Fla. Sept. 27, 2019) (available here).

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Florida U.S. District Court Grants Victory for Defendant, Finds its Dialing Equipment Is Not an ATDS

In many TCPA cases, the sufficiency of a plaintiff’s allegations, particularly those concerning the defendant’s alleged use of an automatic telephone dialing system (“ATDS”), are tested at the pleadings stage through a motion to dismiss. No matter which side prevails, a trial court’s ruling at that procedural moment is limited to whether ATDS allegations are plausible—not whether any evidence actually proves that an ATDS was, in fact, used. And because so many lawsuits are resolved through an early settlement, a defendant often does not have a day in court on the question of whether its dialing equipment as configured and used constitutes an ATDS.

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California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him

Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.

In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading “California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him”