Florida Court Finds One Unwanted Text Message Does Not Cause Concrete Harm, Remands FTSA Case to State Court

March 15, 2023

In Weitz v. Genting New World LLC, No. 1:22-cv-23209-BLOOM, 2023 WL 2328365, at *1 (S.D. Fla. Mar. 2, 2023), Plaintiff Brandon Weitz brought suit against Defendant Genting New World LLC on behalf of himself and a putative class in Florida state court, alleging violations of the Florida Telephone Solicitation Act (“FTSA”). Defendant removed the case to the United States District Court for the Southern District of Florida. Id.

Sometimes dubbed Florida’s “Mini-TCPA,” the FTSA regulates telemarketing activities within Florida. The law was designed to protect consumers from unwanted telemarketing calls and ensure that telemarketers comply with certain rules and regulations. The FTSA prohibits certain acts, such as calling individuals who are on the National Do Not Call Registry, using automatic dialing systems to call emergency phone numbers, and using pre-recorded messages without prior consent.

Established Business Relationship Defense Dooms Class Allegations

February 17, 2023

Michael P. Daly and W. Joshua Lattimore

Class Certification, Established Business Relationship

The Northern District of Illinois recently granted a TCPA defendant’s motion to strike class action allegations, reasoning that individual questions of consent and the availability of the established business relationship (“EBR”) defense made the claims unsuitable for class treatment. The case is Sorsby v. TruGreen L.P., 2023 WL 130505 (N.D. Ill. Jan. 9, 2023).

The plaintiff alleged that, after cancelling her TruGreen lawn-care service and telling TruGreen not to call her, she received numerous calls from TruGreen to a number that was on the National Do-Not-Call Registry and should have been on TruGreen’s internal Do-Not-Call list. TruGreen moved to strike the class allegations, arguing that plaintiff could not satisfy Rule 23’s requirements of typicality, commonality, and predominance. The court agreed and struck the class allegations.

The court explained that the TCPA does not prohibit solicitations to customers with whom a business has an EBR. Although the named plaintiff claimed to have terminated her own EBR, the availability of the EBR defense as to other class members was inherently individualized and not capable of being determined on a classwide basis.

Conflicting Decisions Illustrate Uncertainty as to Whether TCPA Extends to Text Messages

February 16, 2023

William A. Wright and Rachel A. Dansky

Do-Not-Call Rules, Residential Line, Text Messages

Two recent District Court opinions highlight an ongoing dispute as to whether the TCPA and its implementing regulations should apply to mobile (cellular) phones and text messages received thereon, as opposed to the more limited application of only traditional residential landlines.

The District Court for the Western District of Missouri recently denied a defendant’s motion to dismiss a TCPA claim, holding, among other things, that 47 C.F.R. § 64.1200(d) broadly applies to text messages just as it applies to telephone calls. Eagle v. GVG Capital, LLC, No. 22-cv-00638-SRB, 2023 WL 1415615 (W.D. Mo. Jan. 31, 2023). 47 C.F.R. § 64.1200(d) protects consumers from receiving unsolicited telemarketing calls, stating that no person or entity may make such calls to a residential telephone subscriber unless procedures are put in place to maintain a list of those who request not to be contacted that meet a set of minimum standards. See 47 C.F.R. § 64.1200(d).

In Eagle, the plaintiff sued Defendant GVG Capital, LLC, a marketing and lead generation company, on behalf of herself and three classes alleging multiple TCPA violations, including the delivery of solicitation text messages to the class despite their telephone numbers being on the National Do Not Call Registry (NDNCR) and alleging that those text messages did not include the sending defendant’s contact information. The plaintiff alleged that she uses her cellphone as her residential telephone number and had it registered with the NDNCR in 2012. In 2022, she began receiving text messages from a series of numbers asking if she was interested in selling her home and directing her to a real estate website, and plaintiff alleged that these messages did not contain the required contact information and disclosures prescribed by the TCPA.

The Eleventh Circuit’s Minority View of Article III Results in Dismissal of Another TCPA Case

January 11, 2023

Justin O. Kay and W. Joshua Lattimore

Jurisdiction, Standing

The District Court for the Southern District of Florida recently dismissed a TCPA lawsuit for lack of Article III standing, holding that five unsolicited text messages did not constitute a concrete injury. Muccio v. Global Motivation, Inc., __ F. Supp. 3d __, 2022 WL 17969922 (S.D. Fla. Dec. 27, 2022). In so doing, the court applied the Eleventh Circuit precedent in Salcedo v. Hanna, which held that a single, unsolicited text message did not itself constitute a concrete injury.

In Muccio, the plaintiffs alleged receiving five unsolicited text messages from defendant Global Motivation, Inc. The complaint alleged that the text messages did not include the ability to opt-out of future messaging and failed to identify the name of the sender or include the sender’s contact information. The court decided the motion on Article III standing. The mere existence of a statutory right, the court explained, even if violated, does not excuse the need for a plaintiff to allege a concrete injury. The complaint, however, merely sought to redress “inconvenience, invasion of privacy, annoyance, and violation of their statutory rights.” Applying the rule set forth in Salcedo v. Hanna, the Muccio court dismissed the suit without prejudice for failure to allege a concrete injury.

First Circuit Rejects Classwide Settlement, Finds That Would-Be Class Representatives Could Not Adequately Represent Subclasses With Materially Different Claims

December 28, 2022

William A. Wright and Henry M. Grabbe

Adequacy-of-Representation, Class Certification, Incentive Awards, Settlements

The First Circuit recently reversed the District of Massachusetts’s approval of a settlement award that improperly lacked any subclasses within the 4.8-million-person putative class, finding it “too difficult to determine whether the settlement treated class members equitably.” Murray v. Grocery Delivery E-Services USA, No. 21-1931, — F.4th — (1st Cir. Dec. 16, 2022).

The complaint alleged that defendant Grocery Delivery E-Services USA, d/b/a HelloFresh violated the TCPA through its marketing tactics by (1) calling former customers using an automated dialer, (2) calling former customers that were listed on the National Do-Not-Call registry, and (3) calling former customers that had asked HelloFresh not to contact them. The named plaintiffs—through a single plaintiff’s attorney that purported to represent the entire 4.8-million-person class—negotiated a $14 million settlement with HelloFresh, which the District Court approved without identifying any subclasses of plaintiffs.

Eleventh Circuit Finds Complaint’s Ambiguity in Number of Calls Received Warrants Remand for Article III Standing Analysis

December 6, 2022

Bradley J. Andreozzi and Victoria L. Andrews

Actual Harm, Jurisdiction, Standing

Recently, the Eleventh Circuit remanded a TCPA suit for the district court to rule on Article III standing, finding that the trial court should have addressed the standing issue because plaintiffs failed to plead the number of telephone calls allegedly received.

Sixteen plaintiffs in Evans v. Ocwen Loan Servicing, LLC, No. 21-14045, 2022 WL 17259718 (11th Cir. Nov. 29, 2022), alleged that defendants violated the TCPA by using an Automated Telephone Dialing System (ATDS) to call them. The complaint included the exact number of calls allegedly received by only eight of the plaintiffs, and stated “that the ‘[e]xact number of calls’” received by the other eight was “‘not confirmed at this point.’” Id. at *1. The district court dismissed, concluding that the system at issue was not an ATDS. The Court of Appeals vacated and remanded, however, finding that the district court failed to address “a significant jurisdiction issue.” Id.

The court explained that recent Eleventh Circuit precedent establishes that the receipt of more than one unwanted call is sufficient to establish the concrete injury necessary for standing, but the Eleventh Circuit rulings do not “address whether a single call is sufficient to confer [Article III] standing.” Id. (citing Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020) and Cordoba v. DIRECTV, LLC, 946 F.3d 1259, 1270 (11th Cir. 2019)). Thus, the appellate court reasoned, “the resolution of the standing question could differ depending on how many calls each plaintiff is alleged to have received.” Id. Because the complaint did not specify the number of calls allegedly received by eight of the plaintiffs, the court reasoned that they could have received “zero, one, or more than one,” and each option “would potentially present a different resolution to the standing issue.” Id. Accordingly, the court vacated the district court’s dismissal (without reaching the ATDS issue) and remanded to the district court to address Article III standing.

Interestingly, the Evans court did not cite Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), which, as we reported on here, held that receipt of a single text message does not constitute the concrete injury needed for Article III standing. The failure to address Salcedo leaves open the possibility that the Eleventh Circuit could impose a different standard for calls and texts (a possibility further suggested because Salcedo emphasized that Congress did not address text messages in the TCPA because text messages did not exist when the statute was enacted). Regardless of how the standing issue is ultimately resolved though, the Evans decision still emphasizes the need for plaintiffs to be specific in pleading the number of communications received, particularly in jurisdictions that have either suggested or held that this number impacts standing. Further, defendants should consider whether to challenge standing (in light of overall case strategy) when the complaint fails to allege specific facts that would preclude this defense.

Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

December 5, 2022

Michael P. Daly and Kevin DeMaio

Faxes

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA. The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients. The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit. Caremark (and its vendor that sent the fax at issue) moved for summary judgment. The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA. The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.

Recent Ninth Circuit Opinions Address Standing and the Meaning of “Automatic Telephone Dialing System”

November 28, 2022

Matthew J. Adler

Actual Harm, Automatic Telephone Dialing System, Do-Not-Call Rules, Residential Line, Standing, Text Messages

The Ninth Circuit recently issued two noteworthy TCPA decisions. Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space: the definition of “automatic telephone dialing system” (“ATDS”). Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers. See Borden, 2022 WL 16955661, at *1.

FCC Releases Declaratory Ruling Addressing the TCPA Compliance Status of Ringless Voicemails

November 28, 2022

Laura H. Phillips

FCC Actions, Telemarketing

On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (Declaratory Ruling), in which it determined that “ringless voicemail” to wireless phones requires prior consumer consent to transmit because it is a “call” made using an artificial or prerecorded voice and thus is covered under section 227(b)(1)(A)(iii) of the 1991 Telephone Consumer Protection Act (TCPA). The Declaratory Ruling was issued even though the petitioner, All About the Message, LLC (AATM) had requested withdrawal of its 2017 Petition for Declaratory Ruling seeking to have the FCC declare that ringless voicemail, based on the technology and the lack of direct charge to wireless consumers, is not subject to the TCPA and the agency’s implementing rules. Addressing AATM’s withdrawal request, the FCC stated that it believed a ruling was necessary to resolve a controversy and remove uncertainty about the status of ringless voicemail under the TCPA.

Codified in section 227 of the Communications Act of 1934, the TCPA addresses certain practices considered to be an invasion of consumer privacy or, in some instances, a risk to public safety. Section 227(b)(1)(A)(iii) prohibits making any non-emergency call using an automatic telephone dialing system (autodialer) or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party. AATM sought an FCC ruling that delivery of a voicemail message directly to a consumer’s cell phone voicemail is not covered by the TCPA. AATM relied on several arguments, but primarily claimed that its ringless voicemail message was not a “call” because its proprietary software creates a landline-to-landline session directly to the telephone company’s voicemail server without charge to the subscriber and is not shown as a call on any consumer bill.