Court denies class certification where question of who is a residential subscriber would predominate litigation

A court in the District of Oregon recently granted a defense motion to deny class certification, largely because the issue of whether the putative class representative’s phone number was “residential”—a prerequisite to TCPA protection—would predominate the litigation.

In Mattson v. New Penn Financial, LLC, the district court considered plaintiff’s objections to the magistrate judge’s findings and recommendation regarding defendant’s motion to deny class certification. No. 3:18-CV-00990-YY, 2021 WL 2888394, at *1 (D. Or. July 9, 2021). The magistrate judge had concluded that plaintiff was an inadequate class representative because questions remained concerning whether he alleged a sufficient injury in fact to bring a TCPA claim, and also because issues individual to the plaintiff would predominate the litigation.

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District Court Departs from Supreme Court Plurality to Find Government-Debt Collector Retroactively Liable Under TCPA — But Rejects Statutory Damages

For nearly five years, the TCPA explicitly excluded from liability calls made to collect government-backed debt. Naturally, government debt collectors relied on this exception and called debtors without fear of TCPA liability. In 2020, the Supreme Court ruled that this exception was unconstitutional and severed it from the statute. Now, a federal district court has ruled that government debt collectors may be liable for calls made prior to the Supreme Court Ruling, despite their reasonable reliance on the exception. In doing so, the court brushed aside due process concerns.

As previously reported, the government debt exception was severed from the statute by the Supreme Court’s decision in Barr v. AAPC. The AAPC decision was highly fractured—with the Court issuing four opinions but none commanding a majority.  Since, district courts have been grappling with AAPC means for the statute.

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TCPA Plaintiff Argues He Wasn’t Injured in Attempt to Dodge Federal Jurisdiction

Usually, it is the plaintiff that argues he or she was injured, not the defendant. But, in an effort to stay in state court, some TCPA plaintiffs have taken the counterintuitive position that they did not suffer an injury in fact under Article III of the U.S. Constitution and, therefore, their claims cannot be heard in federal court.

“[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000).

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Single Fax Received by E-Mail Deemed Insufficient to Confer Article III Standing

As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.

But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.

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Court Refuses to Reduce $925M in Aggregate Statutory Damages

The District of Oregon recently found that a $925,220,000 damages award was not unconstitutionally excessive, reasoning that due process does not limit the aggregate statutory damages that can be awarded in a class action lawsuit under the TCPA. Wakefield v. ViSalus, Inc., No. 3:15-cv-1857, 2020 WL 4728878 (D. Or. Aug. 14, 2020).

As we previously explained, when the trial court denied the plaintiff’s request for treble damages, the jury in the Wakefield case found that the defendant had violated the TCPA by placing 1,850,436 telemarketing calls. Id. at *1. Because the TCPA’s minimum statutory penalty is $500 per violation, the defendant faced aggregate damages of $925,220,000. Id. at *2.

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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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Briefing in Dish Network’s Petition to the Supreme Court Complete

Does a “call placed in violation of the Telephone Consumer Protection Act, without any allegation or showing of injury—even that plaintiffs heard the phone ring—suffice to establish concrete injury for purposes of Article III [of the Constitution?]” Recently, Dish Network petitioned the Supreme Court to resolve this question and overturn a verdict rendered by a North Carolina federal jury that was later trebled to $61 million and upheld by the United States Court of Appeals for the Fourth Circuit. Briefing on Dish Network’s petition is now complete and we now await the Court’s decision on whether it will review the case.

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The Eleventh Circuit Holds That Receipt of a Single Text Does Not Satisfy Article III

The Eleventh Circuit recently held that receiving a single unsolicited text message does not amount to the harm required to sustain a TCPA claim. In Salcedo v. Hanna, John Salcedo brought a TCPA claim against his former attorney after receiving one multimedia text message offering a ten percent discount on future legal services. Salcedo filed suit in district court as the representative of putative class members of former Hanna clients who received similar texts. The district court denied the defendants’ motion to dismiss for lack of standing. In an unusual step, the Eleventh Circuit agreed to hear the case on interlocutory appeal, and reversed the district court’s decision. In so doing, it created a circuit split on Article III standing and a significant hurdle for certifying TCPA class actions in the Eleventh Circuit.

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FCC Commissioner O’Rielly Addresses ACA International – TCPA Changes Afoot

May 4, 2017 was Star Wars Day (“May the Fourth . . .”), but it also marked the date of FCC Commissioner Michael O’Rielly’s speech to the ACA International Washington Insights Conference. Commissioner O’Rielly opened with a joke about the number of times ACA had to call him before he had the opportunity to accept its speaking invitation, and then moved on to discuss a number of ways in which he feels the TCPA has been expanded beyond the intended scope of the statute. O’Rielly cited ACA research showing that between 2010 and 2015 there was a 948 percent increase in litigants involved in TCPA-related lawsuits, but noted that “despite this, there is reason for optimism” with the change in FCC leadership. Continue reading   »