Supreme Court Declines to Resolve Whether Its Bristol-Myers Squibb Decision Applies to Class Actions

The Supreme Court recently declined to review the Seventh Circuit’s ruling in Mussat v. IQVIA, Inc., 953 F.3d 441 (7th Cir. 2020), which found that the logic of Bristol-Myers Squibb Co. v. Superior Court of California, 582 US  (2017) did not apply to class actions and therefore that a federal court in Illinois somehow had specific personal jurisdiction over the individual claims of unnamed class members who had no connection whatsoever to that forum state.

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California District Court Criticizes Creasy, Concluding Barr Decision does not Deprive it of Jurisdiction

A district court from the Central District of California cast its lot against the growing argument that federal courts lack jurisdiction over TCPA claims based on conduct that occurred when the government debt exception was part of the statute. See Shen v. Tricolor California Auto Group, LLC, No. 20-7419, 2020 WL 7705888, at *1 (C.D. Cal. Dec. 17, 2020).

As our regular readers know, the government debt exception—a relatively new addition to the TCPA—was recently severed from the statute by the Supreme Court’s decision in Barr v. AAPC. Since, several federal district courts have questioned whether they may enforce the statute as to claims based on conduct that allegedly occurred while the exception was part of the statute, i.e. from November 2, 2015 through July 6, 2020. Most notably, the Eastern District of Louisiana concluded in Creasy v. Charter Communications that the Barr decision held that the TCPA was unconstitutional in its entirety during the pendency of the exception, that courts lack authority to enforce a constitutional statute, and that courts therefore cannot hear claims based on conduct during that period.

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Is Florida Queasy About Creasy?

On the same day last week, two different judges in the Middle District of Florida issued divergent decisions regarding the effect of the Supreme Court’s holding in Barr v. AAPC, 140 S. Ct. 2335, 2347 (2020). One followed the Eastern District of Louisiana’s groundbreaking decision in Creasy v. Charter Communications and the Northern District of Ohio’s subsequent decision Lindenbaum v. Realgy. But the other is notable because it broke with those decisions, marking the first time a court has rejected them. Compare Hussain v. Sullivan Buick Cadillac-GMC Truck, No. 20-0038, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020) (following Creasy) with Abramson v. Fed. Ins. Co., No. 19-2523, 2020 WL 7318953 (M.D. Fla. Dec. 11, 2020) (rejecting Creasy).

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District of Nevada Applies Agency Principles to TCPA Suit Against Messaging Platform and Consumer-Info Company, Dismisses Claims

Last week, the District of Nevada contributed to a growing consensus among Ninth Circuit district courts that TCPA liability generally does not extend to companies that produce equipment used to place unlawful calls—such as messaging platforms and contact lists— because the entities that use such equipment usually do so on behalf of another company, and not the equipment provider.

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District Court (Again) Holds Text Messages Insufficient to Confer Article III Standing

The Southern District of Florida recently dismissed a TCPA claim sua sponte for lack of subject matter jurisdiction, finding that the plaintiff had not alleged a concrete injury-in-fact.  See Perez v. Golden Trust Insurance, Inc., 470 F. Supp. 3d 1327 (S.D. Fla. 2020).

Perez alleged that Golden Trust had violated the TCPA when, without his consent, it used an ATDS to send two telemarketing text messages to his cell phone.  Golden Trust argued that the complaint should be dismissed because Perez did not properly allege the use of an ATDS.

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Timing Is Everything in Eleventh Circuit’s Renewed Consent Case

The Eleventh Circuit recently affirmed the entry of summary judgment in favor of a student loan servicer and its affiliate, finding that their nearly 2,000 calls did not violate the TCPA because the plaintiff had renewed his consent by submitting an online demographic form. See Lucoff v. Navient Sols., LLC, No. 19-13482, 2020 WL 7090315 (11th Cir. Dec. 4, 2020).

The history of this case is somewhat winding. In 2010, the plaintiff was part of a class action against one of the defendants. Id. at *1. As part of the settlement terms, class members who did not submit revocation request forms were deemed to have provided prior express consent to receive calls regarding their student loans. Id. The plaintiff did not submit a revocation request. Id.

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Supreme Court to Hold Oral Argument via Teleconference in Facebook v. Duguid

Tomorrow morning, the Supreme Court will hold oral argument via teleconference in Facebook v. Duguid, which concerns the proper interpretation of the TCPA’s definition of an “automatic telephone dialing system.” The question presented is “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” You can listen to the argument live at various media outlets and later on the Court’s website.

Facebook and U.S. Government Submit Final Briefs in Supreme Court ATDS Fight, Oral Argument to Follow

This week, Facebook and the United States government filed responses to Plaintiff’s brief in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the circuit-splitting uncertainty over what does and does not qualify as an ATDS under the TCPA.  The Plaintiff’s brief—which we covered here—argues that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store” in the statute’s definition of an ATDS.  See 47 U.S.C. § 227(a)(1).  If the TCPA is interpreted in this fashion, liability could follow from using any device that can store and automatically dial a number—including, among other things, virtually every smartphone in use today.

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District Court Decertifies TCPA Class Due to Consent Issues

The Central District of California recently decertified a class of TCPA plaintiffs because consent issues were so individualized that the plaintiffs could not satisfy the predominance requirement. Trenz v. On-Line Administrators, Inc., No. 15-8356, 2020 WL 5823565 (C.D. Cal. Aug. 10, 2020). The case highlights that a defendant can defeat certification by showing that class members provided their numbers in different “transactional contexts,” which can give rise to individualized issues regarding the existence and scope of consent.

In 2008, Volkswagen Group of America, Inc. (“Volkswagen”) launched its Target and Retain Aftersales Customers (“TRAC”) program. Id. at *1. Through this program, it paid for over 900 dealerships across the country to retain Peak Performance Marketing Solutions, Inc. (“Peak”) to place service reminder calls to their customers. Id. A class action alleging the use of autodialers and automated voices to make calls without the plaintiff’s consent eventually followed. Id.

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Despite Absence of Settlement, Unclaimed Funds To Be Distributed To Government Or Charity Rather Than Revert To Dish Network

Last week, the federal judge presiding over a class action against Dish Network (“Dish”) denied a request for reversion of $11 million in unclaimed funds, deciding instead that the funds—which were the product of a trial rather than a settlement—should escheat to the government or be donated to a charity.  See Krakauer v. Dish Network, LLC, No. 14-0333 (M.D.N.C. Oct. 27, 2020).

In denying Dish’s request for reversion, the court explained that “[t]he TCPA is a deterrence statute, and reversion does not support th[at] statutory goal.”  Id. at 10.  It then cited cases for the proposition that unclaimed funds should not revert to a defendant if doing so would undermine the deterrence function of damages.  Id. at 5 (citing In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21, 32-33 (1st Cir. 2012); Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990)).

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