The Northern District of California recently granted summary judgment dismissing a plaintiff’s TCPA claim based on text messages that confirmed plaintiff’s hotel reservations and encouraged him to download defendant’s app. Phan v. Agoda Co. Pte. Ltd., No. 16-CV-07243-BLF, 2018 WL 6591800 (N.D. Cal. Dec. 13, 2018). The case turned on whether the texts constituted advertising or telemarketing—thus requiring plaintiff’s prior express written consent. After considering “[b]oth the context and the content of the messages,” the court held that the texts were neither advertising nor telemarketing, and granted summary judgment in defendant’s favor because it was undisputed that plaintiff had given the requisite consent for informational or transactional texts. Continue reading
Recently, an Eastern District of Michigan court entered summary judgment in favor of a defendant upon finding that it had neither transmitted nor caused the transmission of the fax at issue. In Garner Properties & Management, LLC v. Marblecast of Michigan, Inc., the plaintiff alleged that it had received an unsolicited fax that referenced the products of two companies: Marblecast of Michigan and American Woodmark. The plaintiff sued both companies in a putative class action. American Woodmark eventually moved for summary judgment and argued that the plaintiff had failed to offer evidence from which a reasonable juror could conclude that it had “sent” the fax at issue. See 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless. . . .”) (emphasis added). In opposition, the plaintiff argued that American Woodmark was strictly liable as a sender under the TCPA because the fax had referenced its products. Continue reading
As consumers and businesses await clarity from the FCC regarding the definition of “automatic telephone dialing system” (“ATDS”), district courts throughout the country continue to grapple with competing appellate decisions in order to resolve pending cases within this uncertain and fast-changing legal landscape. A recent decision, Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018) (available here), provides an illustration of this current climate, as a Minnesota federal judge had to address four appellate cases concerning the ATDS definition from this year alone, including the seminal ACA International decision. The decision is also notable because the court concluded that the defendant’s “predictive dialing systems” did not violate the TCPA. Continue reading
The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls.
The Central District of California recently granted summary judgment to a health insurer after finding that a pre-recorded message delivered to the insured’s cell phone reminding her to review her health plan options for the coming year was not telemarketing. Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. 16cv108 (C.D. Cal. Jan. 13, 2017), ECF No. 73.
In Smith, the plaintiff completed an application for health insurance through California’s Affordable Care Act Healthcare Marketplace, Covered California. As part of that application process, Plaintiff provided her cell phone number as “the best number at which to contact her.” As required by law, the insurance was set to automatically renew for 2016, and in 2015, Blue Shield attempted to contact Smith by sending written materials to her mailing address (as also required by law) to inform her of the changes to her plan and provide her with alternatives. Plaintiff’s materials, however, were returned to Blue Shield as undeliverable. As with other insureds whose materials were returned, Blue Shield followed up with a pre-recorded message stating in relevant part: “This is an important message from Blue Shield of California. It’s time to review your 2016 health plan options and see what’s new. Earlier this month, we mailed you information about your 2016 plan and benefit changes. It compares your current health plan to other options from Blue Shield. You can also find out more online at blueshieldca.com. If you have not received your information packet in the mail, or if you have any questions, please call the number on the back of your member ID card.” Plaintiff received the call on December 3, 2015; on December 6, 2015, she completed an application for a different insurance plan for the 2016 year. Continue reading
A recent appellate opinion out of Oklahoma state court provides an important reminder that putative classes should not include people who did not receive the communication at issue. See Ketch v. Royal Windows, 113986 (Ct. Civ. App. Okla., Nov. 08, 2016).
In Ketch, the plaintiff filed suit after receiving an allegedly unsolicited fax advertisement from the defendant, from which it had previously requested a catalog. The defendant admitted that the fax advertisement did not have any opt-out language and evidently did not seek a retroactive waiver from the FCC. The plaintiff then moved for summary judgment on behalf of itself and a previously certified class. The trial court granted that motion, finding that Royal was liable to the tune of $290,000.00, i.e., $500 for each fax that had been transmitted. Continue reading