The Eleventh Circuit recently held that receiving a single unsolicited text message does not amount to the harm required to sustain a TCPA claim. In Salcedo v. Hanna, John Salcedo brought a TCPA claim against his former attorney after receiving one multimedia text message offering a ten percent discount on future legal services. Salcedo filed suit in district court as the representative of putative class members of former Hanna clients who received similar texts. The district court denied the defendants’ motion to dismiss for lack of standing. In an unusual step, the Eleventh Circuit agreed to hear the case on interlocutory appeal, and reversed the district court’s decision. In so doing, it created a circuit split on Article III standing and a significant hurdle for certifying TCPA class actions in the Eleventh Circuit.
N.D. Ohio Court Dismisses TCPA Claim, Finding Insufficient Allegations Regarding Consent
The Northern District of Ohio recently granted a motion to dismiss a TCPA claim because the plaintiff failed to allege plausibly that he had not consented to receive the calls. Whiteacre v. Nations Lending Corp., et al., No. 19-CV-809, 2019 WL 3477262 (N.D. Ohio Jul. 31, 2019). The decision reinforces the requirement that to plead a TCPA claim, the plaintiff cannot rely on conclusory allegations that he never consented (or revoked any consent that was previously provided). To state a plausible claim, the complaint must provide factual allegations, not mere labels or legal conclusions.
Plaintiff alleged that defendants Nations Lending Corporation and its alleged loan servicer, LoanCare, violated the TCPA when LoanCare called him through an automated voice messaging system. Id. at *2. The Plaintiff alleged that he “expressed his lack of consent to automated calls,” but the court noted that “Plaintiff does not describe how he ‘expressed his lack of consent,’ nor does he give any other details about the prerecorded calls.” Id. at *3 (emphasis added). Defendants moved to dismiss the TCPA claim, arguing that Plaintiff’s conclusory allegations failed as a matter of law.
Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues
The Western District of Oklahoma recently granted a plaintiff’s motion for summary judgment against NorthStar Alarm Services, LLC (“NorthStar”) in a certified class action. The court held, in part, that NorthStar was vicariously liable for telemarketing calls that sales lead generator Yodel Technologies, LLC (“Yodel”) placed on its behalf. Braver v. NorthStar Alarm Services, LLC, No. 17-cv-0383, 2019 WL 3208651, at *1 (W.D. Okla. July 16, 2019). The case illustrates the factors that one court found relevant in a particular factual context when assessing vicarious liability issues related to a lead generator’s telemarketing calls. Continue reading “Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues”
FCC Amends Its Caller ID Rules to Broaden their Scope and Effect
The FCC on August 1 voted to adopt enhanced Truth in Caller ID rules that will subject a broader range of “spoofed” calls to new heftier statutory civil penalty and potentially criminal sanctions for willful and knowing violations of these FCC requirements. Companies using spoofing technology should have until early 2020 to assess their operations to ensure compliance prior to these amended rules taking effect.
At its Open Meeting, the FCC adopted a Report and Order (R&O) to amend the current Truth in Caller ID rules. The text of the adopted version of the R&O was released on August 5, 2019 and largely remains unchanged since the release of the draft Second R&O. It appears that the rules adopted build upon the framework the FCC proposed in its Notice of Proposed Rulemaking from in February 2019 (click here for our earlier summary of the Notice). Overall, the Second R&O mirrors most of the FCC’s original proposals. The differences we highlight below are relatively technical, reflecting the FCC’s attempt to grapple with and clarify the scope of rule changes in light of foreseeable business use cases that may cause problems that the RAY BAUM’S Act intended to prevent.
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TCPA Class Allegations Stricken Due to “Unique Defenses Peculiar to Plaintiff’s Case”
The Northern District of Illinois recently clarified that a “revocation class” that defines a putative class as those having made “a request to stop calling [their] number” does not satisfy Rule 23(b)(3)’s predominance requirement. This memorandum opinion again highlights the significance of individualized issues of consent in a TCPA class certification process. Continue reading “TCPA Class Allegations Stricken Due to “Unique Defenses Peculiar to Plaintiff’s Case””
Court Rejects Attempt to Treble $925 Million Statutory Damages Award
The District of Oregon recently denied a motion for treble damages following a jury verdict finding that defendant made over 1.8 million advertising calls to the named plaintiff and other members of a certified class. Wakefield v. ViSalus, Inc., No. 15-cv-1857, 2019 WL 2578082, at *1 (D. Or. June 24, 2019). The court found that enhanced damages simply were not appropriate under the circumstances of the case. Continue reading “Court Rejects Attempt to Treble $925 Million Statutory Damages Award”
Eighth Circuit Finds that Telemarketer’s Plausible Belief of Consent to Calls Supports Radical Reduction of Statutory Damages Award
In Golan v. FreeEats.com, Inc., No. 17-3156 (8th Cir. July 16, 2019), the Eighth Circuit affirmed a trial court’s radical, post-trial reduction of damages in a TCPA case.
Although the trial court originally awarded the plaintiffs more than $1.6 billion in statutory damages, it later slashed the award by 98 percent to approximately $32.4 million. The plaintiffs appealed that decision. (The plaintiffs also appealed the trial court’s rejection of their preferred jury instruction on direct liability, which the Eighth Circuit also affirmed.) Continue reading “Eighth Circuit Finds that Telemarketer’s Plausible Belief of Consent to Calls Supports Radical Reduction of Statutory Damages Award”
By Clicking Continue . . .
The Northern District of Illinois recently denied a motion to compel arbitration in a putative class action, and in doing so found that the plaintiff had not agreed to arbitrate the dispute when navigating through one of the defendants’ websites. See Anand v. Heath, et al., No. 19-0016, 2019 WL 2716213 (N.D. Ill. June 28, 2019).
The plaintiff in Anand registered and completed a survey for a gift card on a website owned and operated by a subsidiary of one of the defendants. As part of her registration, she submitted her contact information, including her telephone number. After she received allegedly unsolicited telemarketing calls, the plaintiff filed a putative class action and two of the defendants moved to compel arbitration pursuant to the website’s terms and conditions.
Comment Cycle Begins for the FCC’s Third Further Notice of Proposed Rulemaking on “Call Blocking by Default” Regime And SHAKEN/STIR Implementation Deadline
On June 24, 2019, the FCC’s adopted Declaratory Ruling and Third Further Notice of Proposed Rulemaking (“Third FNPRM”) was published in the Federal Register, triggering the commenting period deadlines. We previously discussed in detail the various components of the Third FNPRM here and here. Comments on this Third FNPRM are due by Wednesday, July 24, 2019, and reply comments are due by Friday, August 23, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments as they become available.
High Court Punt Plunges TCPA Suits into Greater Uncertainty
TCPA Blog contributor Justin Kay was quoted in the Law360 article titled, “High Court Punt Plunges TCPA Suits Into Greater Uncertainty,” which examines potential ramifications of the Supreme Court’s recent decision in PDR Network LLC et al. v. Carlton & Harris Chiropractic Inc.
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