The Southern District of New York recently granted a motion to dismiss in a putative TCPA class action because plaintiff failed to plausibly allege that the texts at issue constituted telemarketing or contained advertising material, thus requiring plaintiff’s prior express written consent. The decision highlights the importance of pleading the specific content of the communication at issue in a TCPA case, which directly impacts the type of consent that is required. Continue reading
Two courts recently examined whether professional plaintiffs had standing to assert TCPA claims. Their decisions betray a continuing confusion concerning what it is that gives plaintiffs—particularly serial plaintiffs—standing to sue. See Cunningham v. Florio, No. 17-0839, 2018 WL 4473792 (E.D. Tex. Aug. 6, 2018); Morris v. Hornet Corp., No. 17-0350, 2018 U.S. Dist. LEXIS 170945 (E.D. Tex. Sept. 14, 2018). Continue reading
On October 3, 2018, the FCC issued a Public Notice requesting further comment on “what constitutes an automatic telephone dialing system” under the terms of the TCPA in light of the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018). Continue reading
The Northern District of Illinois recently granted a motion to decertify a class of TCPA plaintiffs in light of the U.S. Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), which held that the equitable tolling doctrine does not apply to successive class actions. See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL 3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed that plaintiffs can no longer “wait out” a statute of limitations and then “piggy back on an earlier, timely filed class action.” Id. at *1. Continue reading
The District of Arizona recently became one of the first courts in the country to address the definition of an ATDS in light of the D.C. Circuit’s blockbuster ruling in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). Our previous client alert regarding ACA predicted that the decision would provide TCPA defendants with increased opportunities to defeat claims based on plaintiffs’ failure to prove the use of an ATDS. The Herrick v. GoDaddy.com, LLC case exemplifies how defendants can use the ACA decision to combat TCPA claims on this issue and hopefully foreshadows an emerging wave of favorable decisions. Continue reading
A recent decision from the District of Maryland denied the Defendant’s motion for summary judgment because the Plaintiff had in the Court’s view raised a genuine issue of material fact regarding whether he had revoked his consent to receive automated debt-related calls. But the Court also denied the Plaintiff’s motion for class certification for the same reason, finding that individualized issues regarding the provision and revocation of that consent would predominate over any alleged common issues. See Ginwright v. Exeter Fin. Corp., No. 16-0565 (D. Md. Nov. 28, 2017). Continue reading
Following the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. Mar. 31, 2017), we explained on this blog and elsewhere that the issue of whether a fax advertisement is solicited or not would come back into play in many cases and make it much harder for the plaintiffs’ bar to certify a class of recipients. And that is precisely what occurred in a recent decision from the Northern District of Illinois in Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-cv-513 (N.D. Ill. Nov. 3, 2017): the court granted defendants’ motion to deny class certification. In the process, the court also slammed the door on several arguments proffered by plaintiffs’ counsel in an effort to evade the impact of Bais Yaakov.
The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls.
One of our recent articles discussed how federal courts have analyzed the “traceability” element of Article III in TCPA cases. Specifically, we noted that two federal courts had cited Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) in dismissing claims because the alleged injuries were not “traceable to” (i.e., caused by) the purported violations. See Ewing v. SQM US Inc., No. 16-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 15-0193, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016). In their view the “violation” was not the act of dialing a number, but rather the act of dialing a number with an ATDS. Because the plaintiffs’ alleged injuries would have been the same if the defendants had dialed their numbers manually, the courts found that the plaintiffs lacked Article III standing because their alleged injuries were not traceable to the use of an ATDS. Although the cases involved only one or two calls, the courts did not limit their traceability analyses to that context. Nevertheless it remained unclear whether this rigorous approach to traceability would be applied more broadly in other contexts. Continue reading