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.
A federal court presiding over a civil RICO action recently ordered prolific plaintiff’s attorney Jeffrey Lohman to produce his firm’s communications with its clients. See Navient Sols., LLC v. Law Offices of Jeffrey Lohman, P.C., No. 19-461, 2020 WL 1172696, at *1 (E.D. Va. Mar. 11, 2020). This decision shows that the crime-fraud exception may overcome the attorney–client privilege where a lawyer allegedly participates in a scheme to manufacture TCPA claims. It also suggests that such conduct might form the basis of a civil RICO claim.
The plaintiff in that case, Navient Solutions, alleged that the defendants, including Lohman, operated a fraudulent scheme to manufacture TCPA lawsuits. The defendants allegedly recruited student-debtors into signing up for a sham debt-relief program and told them to stop making loan payments owed to Navient, to pay defendants instead, and to follow a script to induce telephone calls from Navient that would — and ultimately did — form the basis for TCPA claims that were filed by Lohman and others. After patiently uncovering these facts in discovery in various TCPA cases, Navient went on the offensive by bringing a civil RICO claim predicated on alleged mail and wire fraud involved in the scheme.
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.
The Eleventh Circuit last week issued a common-sense ruling vacating class certification in a TCPA case—an area of the law where common sense does not always prevail. In Cordoba v. DIRECTV, LLC, No. 19-12077 (11th Cir. Nov. 15, 2019), the named plaintiff claimed that DIRECTV violated the TCPA when Telecel, the company it had contracted with to provide telemarketing services, failed to maintain an internal “do-not-call list” of individuals who had requested not to receive telemarketing calls on behalf of DIRECTV. Cordoba sought to represent a class of all persons who had received more than one telemarketing call during the period of time that Telecel had failed to maintain a do-not-call list for DIRECTV. The district court certified the class, failing to consider that the class as defined would include many members—mostly members, potentially—who had never asked to be placed on the do-not-call list. Having never made this request, the Eleventh Circuit said, those members lacked standing because their injuries were not traceable to Telecel’s alleged failure to maintain the list. Furthermore, because distributing an award would require the district court to confirm whether a class member had a traceable injury, individualized inquiries predominated over common questions. The district court’s failure to consider these individualized questions of standing and predominance doomed its certification order.
Last year, this blog analyzed whether and when professional plaintiffs have standing to assert TCPA claims. A Massachusetts District Court recently examined that issue and held that a plaintiff’s standing “boils down to” how a plaintiff uses a given phone line.
In Rhodes v. Liberty Power Holdings, LLC, No. 18-10506, 2019 WL 4645524 (D. Mass. Sept. 24, 2019), the Court examined TCPA claims brought by two representatives of a putative class. One of them, Samuel Katz (“Katz”), fits the profile of a professional plaintiff, as he is a “frequent litigant in TCPA cases” who “closely tracks the telemarketing calls he receives.” Katz has served over two dozen TCPA demand letters and has filed at least nine TCPA lawsuits. In the present matter, he alleges that he received thirteen automated calls to a “residential landline that he maintained for emergencies.”
The Eastern District of Pennsylvania recently denied a motion to dismiss a TCPA claim, finding that the plaintiff had standing, that the court had jurisdiction, and that the plaintiff had adequately alleged that an ATDS had been used to place the call at issue. See Shelton v. Nat’l Gas & Elec., LLC, No. 17-4063, 2019 WL 1506378 (E.D. Pa. Apr. 5, 2019). Continue reading