2023 - TCPA Blog

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District of Oregon Finds that Ninth Circuit’s Chennette Presumption Does Not Materially Impact Class Certification Criteria

The United States District Court for the District of Oregon recently issued a significant opinion regarding the legal framework for certifying Do-Not-Call claims. See Mattson v. New Penn Financial LLC, 2023 WL 8452659 (D. Or. 2023).

The genesis of the case was the alleged receipt of unsolicited calls to a cellphone number listed on the National Do-Not-Call Registry. Central to the lawsuit was the plaintiff’s motion to certify a class of individuals who had allegedly received similar calls from the defendant. Id.

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Recent Rulings Highlight the Importance of Challenging Imprecise TCPA Class Definitions

A recent ruling in Sowders v. Scratch Financial, Inc., No. 23-0056, 2023 WL 7525900 (S.D. Ohio Nov. 14, 2023), emphasizes the need to challenge overbroad and unascertainable class definitions in TCPA suits. In that case, the defendant’s motions to dismiss resulted in a ruling that effectively narrowed the plaintiff’s proposed class definition.

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Washington Federal Court Finds Sufficient Allegations of Prerecorded Calls But Dismisses Claims for Treble Damages and Injunctive Relief

Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).

The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.

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This Blog Goes to Eleven

Today marks ten years and counting of the FCC’s revised TCPA rules—and, not coincidentally, of this blog. Over the last decade, more than 50 contributors have shared more than 500 posts about the statute’s restrictions, the FCC’s rules and regulations, the states’ enactment of so-called “mini” TCPAs, and the many twists and turns in the seemingly endless stream of litigation—much of it concocted by a colorful cast of recurring characters—arising under all of them. We have enjoyed sharing our insights and meeting our readers, and we can’t wait to see what the next ten years will bring.

Another Day, Another ATDS Suit Dismissed in E.D. Pa.

Plaintiff Andrew Perrong is no stranger to the Eastern District of Pennsylvania, and on September 18, 2023, yet another of Perrong’s suits was partially dismissed on ATDS grounds. Perrong v. Bradford, et al., No. 2:23-cv-00510, 2023 WL 6119281 (E.D. Pa. Sept. 18, 2023). You can read our prior coverage of Perrong decisions here and here.

In this instance, Perrong filed a TCPA action against Pennsylvania House of Representatives member Matthew Bradford; he later filed an Amended Complaint adding Cleo Communications, LLC, which placed the calls on behalf of Representative Bradford. Perrong alleged that in 2019 and 2020, he received five phone calls, four of which were not answered or were answered to dead air. A fifth phone call included a recording of Representative Bradford, inviting Perrong to participate in a virtual information session on opportunities to connect Pennsylvanians to healthcare coverage. Perrong asserted three TCPA claims against Representative Bradford and Cleo Communications: the placing of a prerecorded message, use of an ATDS, and the placing of a telemarketing call.

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Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes

The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if the fax also refers to a related offer to sell another product or service. 2023 WL 509070, *6 (7th Cir. 2023).

Smith is a decision driven by its particular facts. The plaintiff, a chiropractor¹, received two unsolicited faxes from First Hospital Laboratories (FHL), a company that provides health monitoring and screening services through a network of medical providers who act as independent contractors. Id. at *1. The faxes invited plaintiff to join FHL’s network of preferred medical providers. Id. The faxes also stated that FHL would pay plaintiff a fixed rate for each service he rendered to one of FHL’s clients. Id. FHL would refer clients to the plaintiff only if he agreed to allow FHL to invoice the clients directly for the services and neither attempted to obtain more than the fixed rate nor disclosed to the clients the fixed rates that FHL was paying the plaintiff for the services. Id. at *4. The clear implication was that FHL would profit by charging the clients more than the fixed rate it was paying the plaintiff to render the services. Id.

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Eleventh Circuit Expands on Drazen II, Holding that an Unwanted Text is Sufficient for FTSA Standing

In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) for his receipt of five unsolicited telemarketing text messages. Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).

In reaching that conclusion, the Eleventh Circuit applied its recent en banc decision in Drazen II, which held that a single unwanted illegal telemarketing text message is sufficient to allege a concrete injury under the TCPA. See Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc). See our prior discussion of Drazen II here.

Drazen II explained that “the Constitution empowers Congress to decide what degree of harm is enough [for standing] so long as that harm is similar in kind to a traditional harm.”

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Ninth Circuit “Voices” Its Rejection of Plaintiff’s Attempt to Expand TCPA

The Ninth Circuit recently rejected the argument that a text message qualifies as an “artificial or prerecorded voice” under the TCPA. See Trim v. Reward Zone USA LLC, 2023 WL 5025264, 2023 U.S. App. LEXIS 20445 (9th Cir. Aug. 8, 2023).

There, the plaintiff alleged that the defendant had violated the TCPA by sending text messages with promotional offers without her consent. Specifically, she alleged that the defendant had sent her a message stating: “Hiya Lucine, you are a valuable customer. In these tough times, let us [] reimburse [you] for your shopping needs.”

As you may recall, the TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . an artificial or prerecorded voice . . . to any telephone number assigned to a [ ] cellular telephone service. . . .” 47 U.S.C. § 227(b)(1)(A)(iii).

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Eleventh Circuit Overturns Salcedo, Holding that One Text is Sufficient for TCPA Standing

In a unanimous en banc decision, the Eleventh Circuit recently held that “a single unwanted, illegal telemarketing text message” is sufficient to allege a concrete injury under the TCPA. Drazen v Pinto, No. 21-10199, 2023 WL 4699939 (11th Cir. July 24, 2023) (en banc).

Previously, the leading Eleventh Circuit precedent on Article III standing in text-message cases held that a plaintiff’s alleged receipt of a single unsolicited text in violation of the TCPA “d[id] not state a concrete harm that meets the injury-in-fact requirement of Article III.” Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). See our prior discussion of Salcedo here. Based on Salcedo, an Eleventh Circuit panel previously dismissed the Drazen appeal for lack of jurisdiction, holding that the class definition did not meet Article III standing requirements because it included individuals who had received only a single text message. See our prior discussion of the Drazen panel decision here. The Salcedo opinion made the Eleventh Circuit an outlier of one, with every other federal appellate court to consider the question reaching the opposite conclusion. See Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686, 690 (5th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir. 2020) (Barrett, J.); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 93 (2d Cir. 2019); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017).

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