In a pair of recent opinions, two U.S. district courts in different parts of Texas expressed inconsistent views on a topic we have been following closely: whether plaintiffs who receive just a single unwanted text message can establish a concrete injury for Article III standing.
Continue reading “Texas District Courts Remain Divided on Standing for Single-Text TCPA Plaintiffs”
In a decision that may have far-reaching consequences, a divided panel of the Eleventh Circuit ruled that incentive awards to named plaintiffs—which are routine in TCPA and other class action settlements—are improper. See Johnson v. NPAS Solutions, LLC, No. 18-12344, 2020 WL 5553312, at *1 (11th Cir. Sept. 17, 2020). Despite acknowledging that incentive payments are commonplace in modern class action litigation, the majority held that such awards are prohibited under “on-point Supreme Court precedent” from the late 1800s and required reversal of the district court’s approval of a $1.4 million class settlement.
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On September 16, the U.S. Supreme Court announced that it will conduct a telephonic oral argument for the Facebook, Inc. v. Duguid matter on December 8, 2020. As regular readers of our blog know, the Supreme Court granted Facebook, Inc.’s petition for certiorari in July and agreed to review the Ninth Circuit’s decision to reverse the dismissal of TCPA claims related to Facebook’s automated security text messages. The case promises to resolve the growing circuit split regarding the definition of an ATDS. We will provide continuing coverage of the Facebook case as it moves towards oral argument.
Continue reading “Supreme Court To Hear Facebook ATDS Argument on December 8th”
Late last week, numerous trade associations and public policy institutions filed amicus briefs supporting the narrow interpretation of the ATDS definition for which Facebook and the United States had advocated in briefs filed the week before. The case, Facebook, Inc. v. Duguid, arises from an automated security-alert text message to an individual who had never consented to receive such messages. See Facebook Brief at 15. The amicus briefs seek to help the Supreme Court resolve the growing circuit split over what constitutes an ATDS.
The following amici (and others joining with them) filed briefs in support of Facebook: Lyft, Quicken Loans, Home Depot, Salesforce.com, Aetna, Midland Credit Management, Credit Union National Association, Portfolio Recovery Associates, the Retail Litigation Center, the Life Insurance Direct Marketing Association, the Washington Legal Foundation, the Professional Association for Customer Engagement, and the U.S. Chamber of Commerce. The briefs (and previous filings in the case) can be found here.
Last Friday, Facebook and the United States government filed briefs in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the growing circuit split over the interpretation of the definition of an ATDS. The Supreme Court granted certiorari in July, agreeing to review a Ninth Circuit decision that had reversed the dismissal of claims targeting Facebook’s login text alerts.
The Eastern District of Pennsylvania recently dismissed a RICO lawsuit against a serial TCPA plaintiff, finding that, while the conduct alleged “might be unseemly,” it did not amount to racketeering activity. Jacovetti Law, P.C. v. Shelton, No. 2:20-cv-00163, 2020 WL 5211034, at *3 (E.D. Pa. Sept. 1, 2020).
Continue reading “Court Dismisses Conclusory RICO Claim Against Professional Plaintiff”
The Eastern District of Pennsylvania recently dismissed a serial TCPA plaintiff’s complaint sua sponte because the court concluded that it did not have personal jurisdiction over the defendant. Perrong v. REWeb Real Estate, LLC, No. CV 19-4228, 2020 WL 4924533 (E.D. Pa. Aug. 21, 2020). The case demonstrates that courts are becoming increasingly frustrated with “professional plaintiffs” who repeatedly file TCPA claims against businesses and pressure them “to settle independent of the merits of the case.” Id. at *3.
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In a victory for debt collectors, the Central District of Illinois recently found that a plaintiff’s bare-bones allegations regarding use of an ATDS were particularly implausible because “the business of the defendant is such that it would not need a machine with random or sequential number generation capacities.” Mosley v. Gen. Revenue Corp., No. 20-01012, 2020 WL 4060767, at *3 (C.D. Ill. July 20, 2020).
In Mosley v. General Revenue Corp., the plaintiff alleged that a debt collection company used an ATDS and prerecorded messages to call her cellular telephone without her consent. Id. at *1. She claimed the calls concerned debts that were not hers, and some calls started with short pauses and “dead air.” Id.
The District of Oregon recently found that a $925,220,000 damages award was not unconstitutionally excessive, reasoning that due process does not limit the aggregate statutory damages that can be awarded in a class action lawsuit under the TCPA. Wakefield v. ViSalus, Inc., No. 3:15-cv-1857, 2020 WL 4728878 (D. Or. Aug. 14, 2020).
As we previously explained, when the trial court denied the plaintiff’s request for treble damages, the jury in the Wakefield case found that the defendant had violated the TCPA by placing 1,850,436 telemarketing calls. Id. at *1. Because the TCPA’s minimum statutory penalty is $500 per violation, the defendant faced aggregate damages of $925,220,000. Id. at *2.
Continue reading “Court Refuses to Reduce $925M in Aggregate Statutory Damages”
In Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit weighed in on the definition of an ATDS, joining the Second and Ninth Circuits in reading it expansively. The opinion was issued twenty days after the Supreme Court agreed to review this issue, following a growing split among the circuit courts. (Click these links for our previous blogposts about decisions from the Second, Seventh, Eleventh, Ninth, Third, and D.C. Circuits.)
Continue reading “The Sixth Circuit Adopts Expansive Interpretation of ATDS”