Seventh Circuit Reaffirms Gadelhak, Rejects Challenge to Narrow ATDS Definition

The Seventh Circuit last week affirmed its holding in Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (7th Cir. 2020) that, to qualify as an “automatic telephone dialing system” (ATDS) under the TCPA, a device or calling system must have the ability to randomly or sequentially generate the phone numbers that it calls. As we reported here and here, this interpretation of the statute’s ATDS definition excludes systems and devices that place calls from a premade list of numbers, such as a list of customers’ mobile numbers. Courts remain divided on how to interpret the ATDS definition and the Supreme Court is expected to address the issue in a case that is currently before it, Facebook, Inc. v. Duguid.

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Eastern District of California Adds to Creasy Split

As we have reported on here, here, here, and here, a growing number of district courts are issuing opinions addressing whether they have subject matter jurisdiction over TCPA claims alleging robocall violations that occurred when the government debt exception invalidated by Barr v. APPC, 140 S. Ct. 2335 (2020), was part of the statute.  The Eastern District of California recently added to this line of cases, joining courts that have held that “the TCPA remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020.”  See Stoutt v Travis Credit Union, No. 2:20-cv-01280, 2021 WL 99636, at *3 (E.D. Cal. Jan. 12, 2021).

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District Court Dismisses Ex-Attorney and TCPA Serial Litigant’s Claims with Prejudice

On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.

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Court Dismisses Claims that Shopping Platform was Directly or Vicariously Liable for Retailer’s Texts

The Northern District of California recently granted a motion to dismiss, finding the plaintiff failed to plausibly allege that e-commerce platform Shopify was directly or vicariously liable for the alleged TCPA violations of a retailer using the platform. Sheski v. Shopify (USA) Inc., No. 19-CV-06858, 2020 WL 2474421 (N.D. Cal. May 13, 2020).

The plaintiff filed a putative class action complaint alleging, among other claims, that the defendants Shopify (USA) Inc. and Shopify Inc. (collectively, “Shopify”) violated the TCPA due to Shopify’s “unlawful practice of making, facilitating and participating in an unauthorized text message marketing campaign en masse to consumers’ cellular telephones.”

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District Court Sharpens Focus on Injury-in-Fact Requirement in Text Messaging Cases

The Southern District of Florida recently dismissed a TCPA putative class action for lack of standing, finding that the plaintiff could not show he suffered a concrete injury-in-fact.  Reinforcing Eleventh Circuit precedent, the court held both that the number and infrequency of the text messages at issue was insufficient to support plaintiff’s loss of privacy, waste of time, and intrusion upon seclusion allegations and that he failed to show by a preponderance of the evidence that the texts depleted his cell phone battery or negatively impacted his data and messaging plan. Eldridge v. Pet Supermarket Inc., No. 18-22531, 2020 WL 1475094 (S.D. Fla. Mar. 10, 2020).

In Eldridge, plaintiff alleged that defendant used an ATDS to send him seven advertising and telemarketing text messages without his consent, in violation of the TCPA. Plaintiff received the first two messages after he texted defendant’s number in order to enter a raffle for free pet food. They confirmed plaintiff’s entry in the raffle, provided a link to the raffle’s rules, and stated that plaintiff consented to receive automated text messages from defendant. The next five messages, sent over approximately three months, contained coupon codes and information regarding upcoming pet adoption events. Plaintiff alleged that all seven text messages “‘invaded [his] privacy, intruded upon his seclusion and solitude, wasted his time by requiring him to open and read the messages, depleted his cellular telephone battery, and caused him to incur a usage allocation deduction to his text messaging or data plan.’” Id. at *2.

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Central District of California Grants Motion for Summary Judgment After Finding That Plaintiff Failed to Revoke Prior Express Consent To Be Called

The Central District of California recently granted summary judgment to the defendant on a TCPA claim in Mendoza v. Allied Interstate LLC, SACV 17-885 JVS (KESx), 2019 WL 5616961 (C.D. Cal. Oct. 22, 2019), finding that the plaintiff had not sufficiently proven revocation of consent to be called about two credit card accounts when he had revoked consent to be called about two other accounts serviced by the same card issuer.

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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   »

One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise

Last week, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), a court rejected the argument – supported by previous cases – that pharmacy prescription reminder calls categorically come within the TCPA’s statutory emergency purposes exception. This decision creates uncertainty for all pharmacies and may chill their ability to provide important health care notifications to their patients. Continue reading   »

Class Decertified: Wireless Provider’s Data Demonstrates Individualized Issues of Consent

The United States District Court for the Northern District of Illinois recently decertified a class after the defendant, Yahoo! Inc., submitted new evidence showing that tens of thousands of putative class members may have consented to receive the text messages at issue. See Johnson v. Yahoo! Inc., No. 14-2028 (N.D. Ill. Feb. 13, 2018).

The dispute relates to the Yahoo! Messenger service, which allows Yahoo! users to send text messages to cell phones. After a user would send an initial text message to a specific cell phone number, Yahoo! would send an additional “Welcome Message” text message to that number: “A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to y.ahoo.it/imsms.” The plaintiff alleges that these Welcome Messages violate the TCPA based on a theory that Yahoo! did not have the “prior express consent” of the “called party” (the third party to whom the Yahoo! user had sent the original text message). Continue reading   »

Seventh Circuit Rules that Rule 67 Does Not Provide an Avenue to Mootness

After the Supreme Court held in Campbell-Ewald v. Gomez that merely offering to make a payment will not moot a claim, we predicted that defendants would explore various procedural mechanisms for arguing that actually making a payment will moot a plaintiff’s claim. Indeed, although the Supreme Court did not reach the issue, its decision strongly suggested that plaintiffs who have received complete relief—as opposed a mere offer of complete relief—no longer have live cases or controversies as required by Article III. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Feb. 9, 2016) (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). This week, however, a panel of the United States Court of Appeals for the Seventh Circuit held that not even tendering funds into a court-monitored interest-bearing account is enough to moot a claim. See Fulton Dental, LLC v. Bisco, Inc., No. 16-3574 (June 20, 2017). What, if anything, would be enough it did not say. Continue reading   »