Fourth Circuit Affirms $61M Classwide Do-Not-Call Verdict

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.”

Inadmissible Hearsay Will Not Create Genuine Issue of Fact Regarding Whether Plaintiff Revoked Consent

The Southern District of Texas recently entered summary judgment in favor of a TCPA defendant, holding that the plaintiff had failed to present competent proof that she had orally revoked her consent to be called by a collection agency. Young v. Medicredit Inc., No. 17-3701, 2019 WL 1923457, at *4 (S.D. Tex. Apr. 26, 2019). Continue reading   »

Class Certification Fails Due to Individualized Issues of Consent

The Northern District of California recently denied a plaintiff’s motion for class certification after finding there was no “common method of proof” to determine which members of the class consented to Defendant’s calls. Revitch v. Citibank, N.A., No C 17-06907 WHA, 2019 WL 1903247 at *4 (N.D. Cal. Apr. 28, 2019). This decision is yet another example of how individualized issues of consent can defeat a plaintiff’s predominance requirement under Rule 23(b)(3). Continue reading   »

Seven Robocall-Related Bills Examined at the House Energy and Commerce Committee Hearing

The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.

Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below. Continue reading   »

Defendant Debunks Plaintiffs’ Reliance On FCC Order That Never Became Effective

A pair of new cases, one from Alabama and the other from Florida, has doubled down on the conclusion that plaintiffs cannot rely on the Report and Order adopted by the FCC on August 11, 2016 (the “August 2016 Order”) in asserting their TCPA claims, especially when the subject of the calls is debt owed to or guaranteed by the United States government.

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   »

District Court Denies Class Certification Due to Individualized Issues of Consent

A federal district court recently rejected a plaintiff’s bid at class certification in a TCPA case. See Bais Yaakov of Spring Valley v. ACT, Inc., No. CV 12-40088-TSH, 2018 WL 5281746 (D. Mass. Oct. 24, 2018) (available here). The decision provides a useful illustration of how individualized issues of consent may defeat a plaintiff’s attempt to show that common questions “predominate,” as required by Rule 23(b)(3). Continue reading   »

Mind the Details: Defendant Observes that Key FCC Order Never Took Effect; Wins Judgment on Pleadings

A new case out of Indiana, Sanford v. Navient Solutions, LLC, 2018 WL 4699890 (S.D. IN Oct. 01, 2018), underscores the importance of delving into the details of the FCC materials on which plaintiffs rely to support their claims.

In Sanford, relatively straightforward allegations—the defendant’s continued use of autodialed calls after the plaintiff revoked consent—were complicated by the fact that the federal government owned the debt at issue in the calls. The TCPA prohibits “mak[ing] any call (other than a call made for emergency purpose or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to “a cellular telephone service   . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Continue reading   »

Trial Courts Split On Whether Consumers Can Unilaterally Revoke Contractual Consent

As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere. Continue reading   »

Court Denies Plaintiff’s Summary Judgment Motion, Cites Factual Dispute Regarding Whether Plaintiff Revoked Consent

The Eastern District of Michigan recently denied a plaintiff’s motion for summary judgment because the defendant raised a genuine issue of material fact regarding whether the plaintiff had revoked his consent to receive the challenged calls. See Mayang v. PAR Grp., Inc., No. 17-12447, 2018 U.S. Dist. LEXIS 118784 (E.D. Mich. July 17, 2018). Continue reading   »