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   »

Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability

We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice. Defendant had moved to dismiss the case for lack of Article III standing after removing the case from state court and the district court dismissed the claim because the alleged injuries were not traceable to the purported TCPA violation. Continue reading   »

Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action

The Northern District of Illinois recently granted a motion to decertify a class of TCPA plaintiffs in light of the U.S. Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), which held that the equitable tolling doctrine does not apply to successive class actions. See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL 3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed that plaintiffs can no longer “wait out” a statute of limitations and then “piggy back on an earlier, timely filed class action.” Id. at *1. Continue reading   »

To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision

Prior to the Supreme Court’s denial of petition for certiorari filed by the class action plaintiffs in  Bais Yaakov of Spring Valley v. FCC (an appeal we have been monitoring since the briefing in the D.C. Circuit up through the recent cert petition briefing), TCPA Blog contributor Justin Kay spoke with Legal NewsLine about the petition and the Supreme Court’s likely response. Continue reading   »

Supreme Court Denies Petition Seeking Review of D.C. Circuit Fax Decision Holding that FCC Exceeded Its Authority

The Supreme Court today denied the petition for certiorari filed by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC, thus leaving in place the D.C. Circuit’s ruling that “although the [Telephone Consumer Protection Act] requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.”  852 F.3d 1078, 1082 (D.C. Cir. 2017).  Our summary of the briefing on the petition is available here.

As we’ve discussed previously, the D.C. Circuit’s ruling (binding nationwide pursuant to the Hobbs Act) makes it much tougher for plaintiffs in TCPA fax suits to certify a class.  The plaintiffs’ bar has typically sought to certify classes based on violations of the opt-out notice requirement for solicited faxes, because a class defined in such a way side-stepped the inherently individualized issue of whether the fax was solicited or not. With the opt-out notice requirement for solicited faxes eliminated, plaintiffs’ attorneys have a much tougher challenge.  Indeed, in Alpha Tech Pet, Inc. v. Lagasse, LLC, No. 16 C 513, 2017 U.S. Dist. LEXIS 182499 (N.D. Ill. Nov. 3, 2017), a district court relying on the D.C. Circuit’s decision found that individualized issues of consent precluded certification of a class of fax recipients where certification could not be premised on whether the faxes included an opt-out notice.  The plaintiff in Alpha Tech has appealed that decision, arguing (among other things) that the D.C. Circuit’s decision is not binding in the Seventh Circuit.  Given the significance of this issue for the plaintiff’s bar, we can expect to continue to see collateral challenges like this to the repeal of the FCC’s solicited fax rule notwithstanding that the D.C. Circuit’s decision in Bais Yaakov is now final.

Briefing Concludes on Cert Petition Seeking Supreme Court Review of D.C. Circuit Fax Decision

On January 30, 2018, briefing closed on the petition for certiorari filed in the Supreme Court by the class action plaintiffs in Bais Yaakov of Spring Valley v. FCC.  The class action plaintiffs are seeking review of the D.C. Circuit’s March 2017 decision (discussed at length here, here, here, and here) holding that the FCC exceeded its statutory authority when it promulgated regulations in 2006 requiring that a fax advertisement sent with the prior express consent of the recipient include an opt-out notice because “although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements . . . . [nor does it] grant the FCC authority to require opt-out notices on solicited fax advertisements.”  Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1082 (D.C. Cir. 2017). Continue reading   »

Northern District of Illinois Holds That Opt-Out Notices Are Not Required On Solicited Faxes In The Seventh Circuit

Following the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. Mar. 31, 2017), we explained on this blog and elsewhere that the issue of whether a fax advertisement is solicited or not would come back into play in many cases and make it much harder for the plaintiffs’ bar to certify a class of recipients. And that is precisely what occurred in a recent decision from the Northern District of Illinois in Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-cv-513 (N.D. Ill. Nov. 3, 2017): the court granted defendants’ motion to deny class certification. In the process, the court also slammed the door on several arguments proffered by plaintiffs’ counsel in an effort to evade the impact of Bais Yaakov.

Continue reading   »

Promotion of Company’s Product on a Prohibited Fax Advertisement Held Insufficient to Sue the Company as the “Sender” Under the TCPA

The Eastern District of Michigan recently rejected an expansive interpretation of “sender” liability for unsolicited fax advertisements alleged to violate the TCPA, ruling that the mere inclusion of a company’s products on fax advertisements sent by a third party is not enough, standing alone, to saddle the company with liability for sending the faxes. Rather, to be liable for the faxes, the company must have taken affirmative steps to advertise its products through the faxes. This common-sense ruling, which further aligns Sixth and Seventh Circuit case law on this important issue, should provide ammunition for companies defending TCPA claims based on faxes sent by others in the distribution chain without the authorization or approval of the defendant. The Court also issued another in the litany of recent decisions confirming the limits on personal jurisdiction over foreign corporations. Continue reading   »

D.C. Circuit Denies Petition for Rehearing En Banc in Appeal of Solicited Fax Rule

As we predicted, the D.C. Circuit today denied the plaintiff’s petition for a rehearing en banc of the panel decision striking down the FCC’s regulations requiring opt-out notices on solicited faxes. The per curiam order notes only that “[u]pon consideration of the petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied.” This result is hardly surprising given (i) the FCC Chairman’s current position that the panel decision overturning the FCC was correct (an anomaly that is the result of turnover at the Commission following the election results in November 2016) and (ii) the infrequency with which petitions for rehearing en banc are granted. We expect that the plaintiffs’ bar will continue its appeal efforts via a petition for writ of certiorari to the United States Supreme Court, but also expect that effort to meet the same fate as the petition for rehearing.