2024 - TCPA Blog

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Federal Court Dismisses Action for Lack of Personal Jurisdiction Due to Insufficient Agency Relationship

A recent decision from the U.S. District Court for the Southern District of Indiana demonstrates how a defendant may successfully challenge personal jurisdiction when the facts fail to show vicarious liability through a principal-agent relationship.

In Roehrman v. McAfee, LLC, No. 23-2146, 2024 WL 5008043, at *2 (S.D. Ind. Dec. 6, 2024), the plaintiff sued McAfee, claiming TCPA violations based on allegedly unsolicited text messages that advertised McAfee’s services. McAfee moved to dismiss for lack of personal jurisdiction, arguing that it had not sent the texts at issue. Instead, they were sent by subcontractors (or sub-subcontractors) of one of McAfee’s vendors, without authorization by McAfee. Id. After learning of the texts, McAfee had sent cease-and-desist letters, stating that the text messages violated McAfee’s vendor terms. Id.

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N.C. Federal Court Casts Doubt on Extraterritorial Reach of State Telemarketing Statute

The Middle District of North Carolina recently denied, in part, a motion seeking dismissal of serial TCPA plaintiff Craig Cunningham’s complaint alleging violations of the TCPA and the North Carolina Telephone Solicitations Act (NCTSA). See Cunningham v. Wallace & Graham, P.A., et al., No. 1:24-cv-00221 (M.D.N.C. Nov. 19, 2024). The court suggested that the NCTSA probably does not apply extraterritorially but ultimately denied defendants’ motion to dismiss the NCTSA claim because the parties did not brief the issue.

In Wallace & Graham, plaintiff alleged that he received initial calls from an agent of Sokolove Law, LLC (Sokolove), asking if he was interested in pursuing a claim against the government for toxic exposures that occurred at Marine Corps Base Camp Lejeune (despite the fact that plaintiff allegedly never worked at Camp Lejeune).

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Inherently Individualized Issues of Fact Cause Court to Deny Dismissal and Certification in Case Targeting Health Care Calls

Depending on whether you’re a glass-half-full or glass-half-empty kind of person, plaintiff and defendant both won or both lost when a judge in the Northern District of Illinois recently denied in one fell swoop both the defendant’s motion for summary judgment and the plaintiff’s motion for class certification. Murtoff v. My Eye Doctor, LLC, 21-2607, 2024 WL 4278033 (N.D. Ill. Sept. 24, 2024).

In a case involving health examination reminder calls to someone who was not a current patient, the plaintiff alleged that she received unwanted telemarketing telephone calls from MyEyeDr. leaving pre-recorded voice messages to remind her that she was due for her annual eye exam, in violation of the TCPA. MyEyeDr. filed a motion for summary judgment, arguing that these calls were not telemarketing but rather fell under the Health Care Rule exception to the TCPA, which protects prerecorded healthcare calls (1) that concern a health-related product or service; (2) made by or on behalf of a health care provider to a patient with whom there is an established health care treatment relationship; and (3) that concern the individual health care needs of the patient recipient.

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Supreme Court to Address FCC’s Authority in TCPA Cases: McLaughlin v. McKesson Cert Grant

The Supreme Court has granted certiorari in McLaughlin Chiropractic Associates v. McKesson Corporation (No. 23-1226) to address whether the Hobbs Act requires district courts to follow the FCC’s interpretation that the TCPA does not prohibit faxes received via “online fax services.” This case revisits a key question left unresolved in 2019’s PDR Network v. Carlton & Harris Chiropractic about the binding nature of FCC orders in TCPA litigation. The Court’s decision could potentially determine whether and to what extent courts must follow FCC interpretations in TCPA cases going forward. Oral arguments have not yet been scheduled.

Fourth Circuit Broadens TCPA’s Reach Over ‘Unsolicited Advertisements’

The Fourth Circuit Court of Appeals has recently handed down a decision that impacts the TCPA landscape. In Family Health Physical Medicine, LLC v. Pulse8, LLC, the court reversed a lower court’s dismissal of a TCPA claim, adopting a broader interpretation of what constitutes an “unsolicited advertisement” under the Act. This ruling has important implications for businesses operating in the Fourth Circuit and could influence TCPA litigation strategies nationwide.

The case revolved around a fax sent by Pulse8, a health care analytics company, inviting recipients to attend a free webinar on behavioral health coding. Family Health Physical Medicine alleged that this fax violated the TCPA as an unsolicited advertisement, despite not explicitly offering any goods or services for sale. In a decision that expands the scope of TCPA liability, the Fourth Circuit held that the plaintiff plausibly alleged the fax was an advertisement under two theories. Family Health Physical Med., LLC v. Pulse8, LLC, No. 22-1393, *4-*11 (4th Cir. 2024).

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TCPA Boundaries Drawn: Marketing Text Messages to Known Telephone Numbers Permitted

In Marina Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. (101 F.4th 176), the Second Circuit addressed critical questions regarding the definition of an “automatic telephone dialing system” (ATDS) and whether text messages fall under the TCPA’s prohibition against the use of an “artificial or prerecorded voice.”

Marina Soliman brought a putative class action against Subway, alleging that the company had violated the TCPA by sending her automated marketing text messages after she had opted out of receiving them. The United States District Court for the District of Connecticut dismissed her claims, concluding that the TCPA did not apply to Subway’s actions. Soliman appealed this decision, but the Second Circuit ultimately affirmed the district court’s ruling.

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Third Circuit Affirms Dismissal of List-Mode TCPA Claims

In an unpublished opinion, the United States Court of Appeals for the Third Circuit recently affirmed the dismissal of a “list-mode” theory of liability that had been advanced by prolific professional plaintiff Andrew Perrong. Perrong v. Montgomery Cnty. Democratic Comm., No. 23-2415, 2024 WL 1651274, 2024 U.S. App. LEXIS 9238 (3d Cir. Apr. 8, 2024) (unpublished).

Defendants (including the local committee of the Democratic Party) allegedly called Perrong, addressing him by name and urging him to vote for Democratic candidates in his county’s general elections. Perrong argued that the defendants had used an ATDS—and by doing so had violated the TCPA—because their equipment had allegedly used a number generator to determine the order in which to call phone numbers from a stored list of previously compiled voters.

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Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind.

First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL 1251108 (E.D. Wis. Mar. 18, 2024), the United States District Court for the Eastern District of Wisconsin granted the defendant’s motion for summary judgment, finding that an unsolicited advertising call must “encourage the purchase of any good or service.” Id. at *6 (emphasis added). The defendant’s services at issue, however, were being offered for free. Specifically, the defendant contracted with the Wisconsin Medicaid program to provide free nutritional consulting to state-funded plan holders. Defendant promoted its free services via calls and texts and would bill the state a fee “per eligible member per month, whether or not the member utilized [defendant]’s services.” Id. at *1. Plaintiff, a state-funded health plan user, sued defendant for approximately 20 calls and texts he received promoting defendant’s services. Id. Defendant moved for summary judgment on the grounds that, notwithstanding plaintiff’s advertising allegations, the calls and texts were distinct; they were not actually solicitations because they promoted a free service—at least to the plan holders. The court agreed and ruled in favor of the defendant.

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FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance

HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations.
HB 761 also stated that it should be applied retroactively to cases that were styled as class actions so long as a class had not been certified before HB 761’s effective date.
That retroactivity provision has caused a split between Florida’s federal courts and its state courts.
Two federal courts have applied HB 761 retroactively, dismissing class actions because a class had not been certified before HB 761’s effective date.
But two Florida state courts have refused to apply HB 761 retroactively, holding that applying a pre-suit notice requirement retroactively would violate due process.
Defendants will likely respond by invoking HB 761 retroactively only against unnamed class members (e.g., by striking class allegations) to avoid due process issues.
Relatedly, Florida state courts have sent mixed signals on TCPA/FTSA standing.
Until appellate courts provide clarity, defendants in Florida state court will likely have more success with standing arguments at the class certification stage.

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