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:
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”
As consumers and businesses await clarity from the FCC regarding the definition of “automatic telephone dialing system” (“ATDS”), district courts throughout the country continue to grapple with competing appellate decisions in order to resolve pending cases within this uncertain and fast-changing legal landscape. A recent decision, Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018) (available here), provides an illustration of this current climate, as a Minnesota federal judge had to address four appellate cases concerning the ATDS definition from this year alone, including the seminal ACA International decision. The decision is also notable because the court concluded that the defendant’s “predictive dialing systems” did not violate the TCPA. Continue reading “District Court Grants Summary Judgment for Defendant, Finding its Dialing System Is Not an ATDS”
As we previously reported, the defendant in Marks v. Crunch San Diego, LLC, No. 14-56834 (9th Cir.) filed a Petition for Rehearing En Banc that asked the Ninth Circuit to revisit its recent decision expanding the definition of “automatic telephone dialing system.” Continue reading “Ninth Circuit Declines to Rehear Marks Appeal”
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 Denies Class Certification Due to Individualized Issues of Consent”
As we previously reported here, the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) recently expanded the definition of “automatic telephone dialing system,” at least within the Ninth Circuit. And in response, the FCC issued a Public Notice just last week (covered here) seeking further comment on how to interpret the ATDS definition in light of Marks. The comment period closes on October 24, 2018. Continue reading “Defendant in Marks v. Crunch San Diego, LLC Asks Ninth Circuit for Rehearing En Banc”
The U.S. District Court for the Northern District of Texas recently granted a defendant debt collection agency’s motion to compel arbitration in a TCPA case. See Bow v. Ad Astra Recovery Servs., Inc., No. 18-0510-G, 2018 WL 3455510 (N.D. Tex. July 18, 2018) (available here). In doing so, the court enforced an arbitration agreement that the debt collection agency had never signed, on the ground that the agreement expressly referenced the agency as an “affiliate” of the two lenders that had signed the agreement. The court’s decision provides helpful guidance for enforcing arbitration agreements, particularly in the context of a loan agreement that may lead to debt collection efforts—and potential TCPA exposure. Continue reading “Texas Federal Court Compels Arbitration of TCPA Claims, Grants Motion of Nonsignatory to Agreement”
The Ninth Circuit recently affirmed summary judgment for five defendants—three payday lenders and two lead-generation vendors—in a certified class action where it was undisputed that the text message at issue violated the TCPA. See Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010 (9th Cir. 2018). Rejecting Plaintiff’s ratification theory, the court held that the defendants were not vicariously liable for the actions of a non-party “publisher,” AC Referral—the entity that initiated the text. The Ninth Circuit’s opinion provides useful guidance as to scope of TCPA liability for all players involved in an SMS campaign, particularly those that do not actually press “send.” Continue reading “Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory”
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.
Continue reading “Missouri District Court Rules that App Developer Is Not Subject to Personal Jurisdiction Based on App Users’ Contacts with the Forum”
As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading “District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing”
For years, courts, litigants, and commentators have grappled with the TCPA’s definition of “automatic telephone dialing system” (“ATDS”). As a result of the FCC’s July 2015 Declaratory Ruling and Order, the debate has focused on the question of capacity, i.e., whether a device must have the present capacity to “(a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers” or—as the FCC found—if the potential capacity is sufficient. Continue reading “D.C. Circuit’s Guidance Still Needed After Recent Decisions on TCPA Pleading Requirements”
