Matthew J. Adler, Author at TCPA Blog

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:

Court Finds TCPA’s Fax Restrictions Do Not Apply to Online Services; Denies Class Certification Because Plaintiff Could Not Tell How Each Class Member Received Fax

The U.S. District Court for the Eastern District of Pennsylvania recently denied a plaintiff’s motion to certify a 25,000-member class in a TCPA fax action. See Fischbein v. IQVIA, Inc., No. 19-5365 (E.D. Pa. June 5, 2025).

Plaintiff alleged that IQVIA, a research organization that collects health data, faxed advertisements to over 25,000 health care providers without prior express permission. While analyzing whether members of the proposed class would be ascertainable, the court addressed — for the first time in the Third Circuit — the question of “whether the TCPA’s protection is limited to faxes received on stand-alone fax machines or extends to faxes received by way of online fax services.” The court sided with other circuit courts that have addressed this issue, concluding that “the plain language of the TCPA protects only those who receive unsolicited advertisements on a stand-alone fax machine” — not through an online fax service. (Note that this issue was also addressed in a recent Colorado decision.)

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Sixth Circuit Confirms that Fax Advertisements Can Violate TCPA Even If Sender is Not Seller

The Sixth Circuit recently clarified that faxes may constitute “advertisements” under the TCPA, thus potentially making the sender liable, even when the products referenced in the faxes are not being sold by the sender. See Lyngaas v. United Concordia Companies, Inc., — F. 4th —, 2025 WL 1625517 (6th Cir. 2025) (available here).

In Lyngaas, the district court had granted summary judgment in favor of United Concordia Companies, Inc. (UCCI) where it sent faxes to dentist members of its Fee for Service Dental Network that advertised discounted products sold by third-party vendors. The district court had reasoned that the faxes were not “advertisements,” in part because UCCI’s profit incentive was too remote.

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Federal Court Dismisses Lawsuit, Finding Alleged Faxes Were Not Sent to a “Telephone Facsimile Machine”

The TCPA generally prohibits the transmission of an “unsolicited advertisement” to a “telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(c). But is an “online fax service” a “telephone facsimile machine”? And can a plaintiff state a claim based on faxes that were sent to its “online fax service”? The U.S. District Court for the District of Colorado recently answered both questions in the negative. See Astro Companies, LLC v. Westfax, Inc., et al., No. 1:23-cv-02328 (D. Colo. Feb. 12, 2025).

Plaintiff Astro Companies, LLC (Astro) alleged that it is an online fax service provider that uses a fax server to convert “traditional faxes” into readable formats (such as a PDF), which are then either emailed to the recipient or made available online to be viewed (and potentially printed) at the recipient’s convenience. Astro sued multiple companies, claiming it had received “junk” faxes in violation of the TCPA. Even accepting Astro’s well-pleaded factual allegations as true, the court granted a defendant’s motion to dismiss, found Astro failed to state a claim, and, ultimately, dismissed the action with prejudice.

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Federal Court Dismisses Action for Lack of Personal Jurisdiction Due to Insufficient Agency Relationship

A recent decision from the U.S. District Court for the Southern District of Indiana demonstrates how a defendant may successfully challenge personal jurisdiction when the facts fail to show vicarious liability through a principal-agent relationship.

In Roehrman v. McAfee, LLC, No. 23-2146, 2024 WL 5008043, at *2 (S.D. Ind. Dec. 6, 2024), the plaintiff sued McAfee, claiming TCPA violations based on allegedly unsolicited text messages that advertised McAfee’s services. McAfee moved to dismiss for lack of personal jurisdiction, arguing that it had not sent the texts at issue. Instead, they were sent by subcontractors (or sub-subcontractors) of one of McAfee’s vendors, without authorization by McAfee. Id. After learning of the texts, McAfee had sent cease-and-desist letters, stating that the text messages violated McAfee’s vendor terms. Id.

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Supreme Court to Address FCC’s Authority in TCPA Cases: McLaughlin v. McKesson Cert Grant

The Supreme Court has granted certiorari in McLaughlin Chiropractic Associates v. McKesson Corporation (No. 23-1226) to address whether the Hobbs Act requires district courts to follow the FCC’s interpretation that the TCPA does not prohibit faxes received via “online fax services.” This case revisits a key question left unresolved in 2019’s PDR Network v. Carlton & Harris Chiropractic about the binding nature of FCC orders in TCPA litigation. The Court’s decision could potentially determine whether and to what extent courts must follow FCC interpretations in TCPA cases going forward. Oral arguments have not yet been scheduled.

Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind.

First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL 1251108 (E.D. Wis. Mar. 18, 2024), the United States District Court for the Eastern District of Wisconsin granted the defendant’s motion for summary judgment, finding that an unsolicited advertising call must “encourage the purchase of any good or service.” Id. at *6 (emphasis added). The defendant’s services at issue, however, were being offered for free. Specifically, the defendant contracted with the Wisconsin Medicaid program to provide free nutritional consulting to state-funded plan holders. Defendant promoted its free services via calls and texts and would bill the state a fee “per eligible member per month, whether or not the member utilized [defendant]’s services.” Id. at *1. Plaintiff, a state-funded health plan user, sued defendant for approximately 20 calls and texts he received promoting defendant’s services. Id. Defendant moved for summary judgment on the grounds that, notwithstanding plaintiff’s advertising allegations, the calls and texts were distinct; they were not actually solicitations because they promoted a free service—at least to the plan holders. The court agreed and ruled in favor of the defendant.

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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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