Conflicting Opinions Regarding the Validity of the FCC’s Pre-2015 ATDS Rulings

As our regular readers know, one of the central issues in the ACA International case was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. The D.C. Circuit found that it did not. As we explained at the time, ACA International explicitly set aside the portion of the FCC’s July 2015 Order that pertained to the definition of an ATDS, and by doing so also implicitly set aside the FCC’s prior statements on this subject in prior orders. Continue reading   »

Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case

The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading   »

Court Denies “Individualized Challenges” to Class Members’ Right to Recover

The Northern District of Illinois recently issued an order that denied defendants an opportunity to present “individualized challenges” to the members of a certified class in a TCPA fax case. The court determined that the defendants waived their right to challenge whether certain members of the class were entitled to recover because defendants did not assert their objections at the time the court approved the initial class notice. Continue reading   »

Court Dismisses Case for Failure to Plausibly Allege That Text Messages Constituted Telemarketing

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   »

Continued Confusion Concerning Whether Professional Plaintiffs Have Standing

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   »

FCC Seeks Further Comment on the Definition of an ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC

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   »

Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action

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   »

District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC

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   »

Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment

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   »

Northern District of Illinois Holds That Opt-Out Notices Are Not Required On Solicited Faxes In The Seventh Circuit

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.

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