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   »

FCC Seeks Comments on Key Issues Post-ACA Int’l

Less than a week after the D.C. Circuit issued its mandate in the ACA Int’l v. FCC matter, the FCC has now asked for comments on critical TCPA issues in light of the D.C. Circuit’s now-final decision. See ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In its May 14, 2018 Public Notice, the Consumer and Governmental Affairs Bureau has identified several key issues on which it seeks comments, including the scope of the ATDS definition, how to treat calls to reassigned numbers, and standards for revoking consent. On each issue, the Notice confirms that the FCC is taking a much broader view of the TCPA landscape than it did in its 2015 Declaratory Ruling and Order (“2015 TCPA Order”)—and is willing to consider, in light of the ACA Int’l decision, bright-line rules that will provide much-needed clarity to businesses and litigants. Continue reading   »

District Court Reinforces Requirement that Revocation of Consent Must be Reasonable

The District of New Jersey recently dismissed a class action TCPA complaint, finding that the plaintiff did not use a reasonable method of revoking consent when she failed to follow the defendant’s straightforward directions for providing such revocation. Rando v. Edible Arrangements Int’l, LLC, No. 17-0701, 2018 U.S. Dist. LEXIS 51201 (D.N.J. Mar. 28, 2018). In doing so, the court’s decision further confirmed the position within the District that the totality of the circumstances dictates whether a method of revocation of consent is reasonable and thus valid in TCPA cases. Continue reading   »

Allegedly Revoked Consent Torpedoes Both Class Certification and Summary Judgment

A recent decision from the District of Maryland denied the Defendant’s motion for summary judgment because the Plaintiff had in the Court’s view raised a genuine issue of material fact regarding whether he had revoked his consent to receive automated debt-related calls. But the Court also denied the Plaintiff’s motion for class certification for the same reason, finding that individualized issues regarding the provision and revocation of that consent would predominate over any alleged common issues. See Ginwright v. Exeter Fin. Corp., No. 16-0565 (D. Md. Nov. 28, 2017). Continue reading   »

Yet Another Court Rejects Yet Another Contrived Revocation of Consent Claim

Yesterday the District of New Jersey issued an important decision that reinforces—as we have explained before both here and elsewhere—that a plaintiff’s alleged revocation of consent must be reasonable rather than fanciful. Viggiano v. Kohl’s Department Stores, Inc., No. 17-0243 (D.N.J. Nov. 27, 2017).

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