As we previously discussed, the need for clarification as to the TCPA’s treatment of outbound calls made using soundboard technology (“soundboard calls”) is particularly manifest in light of two pending petitions before the FCC and the Supreme Court’s refusal to review the FTC’s decision to treat soundboard calls as robocalls subject to the Telemarketing Sales Rules. [See here and here]. Plaintiffs have sought to exploit the uncertainty; a spate of lawsuits contend that soundboard calls are prerecorded calls prohibited by the TCPA if made without prior consent. Recently, the Western District of Oklahoma attempted to set a standard for the permissibility of these calls, but the decision may only engender more uncertainty. While professing that soundboard calls are not “categorically prohibited,” the court’s ruling fails to provide a roadmap for what types of soundboard calls would be permissible, beyond stating that a “soundboard call which did not interact with the customer except in preprogrammed not to mention meaningless ways” violated the TCPA.
Soundboard technology allows call center agents to interact with consumers on a real-time basis using a combination of audio clips and the agent’s own voice. Because a live agent selects the audio clips to play based on the statements made by the called party, companies using or offering the technology have argued that these calls feature a degree of human interaction that means they should not be considered “prerecorded calls” subject to the consent requirements of the TCPA.
The Middle District of Florida has denied a motion for class certification, finding the proposed class definition would have created a fail-safe class, the class members were not ascertainable, and the plaintiff’s claims were not typical of the class. Fennell v. Navient Solutions, LLC, No. 17-2083, 2019 WL 3854815, at *2 (M.D. Fla. 2019)
The plaintiff in Fennell alleged that, despite her revocation of consent, Navient had used an ATDS to repeatedly call her to collect a debt. Id. at *1. In response, Navient argued that, although it had used predictive dialers to call other people, it had not used that equipment to call the plaintiff because her delinquent loans had been assigned to Navient’s “Cures Unit,” which only made calls through manual dialing. Id. at *1, *2.
After preliminarily approving a TCPA settlement arising out of allegedly unsolicited faxes, the Middle District of Florida recently reversed course and rejected the settlement in light of the Eleventh Circuit’s finding that the district court had erred in denying a new party’s request to intervene. See Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 16-1622, 2019 WL 4751799 (M.D. Fla. Sept. 30, 2019).
The plaintiffs (Technology Training Associates, Inc. and Back to Basics Family Chiropractic) sued the defendant (Buccaneers Limited Partnership) after they received allegedly unsolicited faxes offering Tampa Bay Buccaneers tickets. The plaintiffs further alleged that the faxes did not comply with the TCPA because they did not include the required opt-out notice.
Recently, the Middle District of Florida denied a motion for class certification, finding that the plaintiff had not sufficiently shown that the putative classes were ascertainable. Sliwa v. Bright House Networks, LLC & Advanced Telesolutions, Inc., No. 16-0235, 2019 WL 4744938 (M.D. Fla. Sept. 27, 2019).
In E&G, Inc. v. Mount Vernon Mills, Inc., No. 17-0218, 2019 WL 4032951 (D.S.C. Aug. 22, 2019), the District of South Carolina denied class certification because individualized issues—specifically, whether recipients had consented to receive the fax at issue—predominated.
Plaintiff E&G, Inc. (“E&G”), a hotel franchisee of Wyndham Worldwide Corporation (“WWC”), received a fax from WWC that included advertisements from certain approved WWC vendors, including defendant Mount Vernon Mills, Inc. (“Mount Vernon”). E&G’s franchise agreement with WWC allowed WWC to offer assistance with purchasing supplies and to provide lists of preferred suppliers. E&G provided WWC with its fax number and updated its contact information over the course of several years.
The Northern District of Illinois recently clarified that a “revocation class” that defines a putative class as those having made “a request to stop calling [their] number” does not satisfy Rule 23(b)(3)’s predominance requirement. This memorandum opinion again highlights the significance of individualized issues of consent in a TCPA class certification process. Continue reading
The District of Oregon recently denied a motion for treble damages following a jury verdict finding that defendant made over 1.8 million advertising calls to the named plaintiff and other members of a certified class. Wakefield v. ViSalus, Inc., No. 15-cv-1857, 2019 WL 2578082, at *1 (D. Or. June 24, 2019). The court found that enhanced damages simply were not appropriate under the circumstances of the case. Continue reading
TCPA Blog senior editor Michael Daly was quoted in a Law360 article regarding the Fourth Circuit’s ruling in Krakauer v. Dish Network, which affirmed the certification of Do-Not-Call claims and the award of $61 million in statutory damages.
Mike and others predicted that plaintiffs will try to invoke the Fourth Circuit’s decision in other kinds of TCPA cases. Mike explained that “[p]laintiffs will no doubt take out of context the Fourth Circuit’s statement that ‘TCPA claims’ are ‘conducive’ to class treatment.” “But that would be painting with too broad a brush,” he explained, because “other species of TCPA claims . . . necessarily turn on inherently individualized questions of consent and revocation of consent, among other things.”
The Fourth Circuit’s decision also serves as an important reminder that plaintiffs may try to hold businesses liable for calls that their vendors make. Mike explained that “the Krakauer decision is—as if anyone still needed one—a wake-up call.” He cautioned that business must be “hypervigilant about what they and their vendors are doing. They should not simply rely on contractual provisions disclaiming agency and requiring compliance and indemnification.”
Read “4th Circuit Ruling Eases Class Certification Path in Telemarketing Rows.”
For years, the plaintiffs’ bar has crammed thousands of non-forum class members into a single action in order to more easily justify broader discovery requests, and to more quickly aggregate statutory damages. And many defendants and courts simply assumed that plaintiffs could do so. But that assumption was called into question by Bristol-Myers Squibb Co. v. Superior Court of California, a mass tort case in which the Supreme Court held that federal courts do not have specific personal jurisdiction over the nonresidents’ claims merely because resident plaintiffs “allegedly sustained the same injuries as did the nonresidents.” Continue reading