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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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Missouri Federal Court Dismisses Another TCPA Claim Due to Traceability Issues

A federal judge in the United States District Court for the Eastern District of Missouri recently dismissed a claim alleging multiple violations of the TCPA’s do-not-call regulations upon finding that plaintiffs had failed to sufficiently plead the traceability element of standing. Thompson v. Vintage Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052 (E.D. Mo. Feb. 8, 2024). This decision follows a similar ruling issued by the same judge just last month in another case involving the same plaintiffs (discussed here).

In the Vintage Stock case, the plaintiffs’ complaint asserted three counts: (1) violation of “the Federal Do Not Call List statute and regulations”; (2) violation of 47 C.F.R. § 64.1200(d); and (3) violation of Missouri’s no-call-list statute, MRS § 407.1098.

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Maryland District Court Opinion Explores Complexities of TCPA Consent and Revocation

In the recent opinion of Smith v. ExamWorks, LLC, No. 21-2746, 2024 WL 622102 (D. Md. 2024), the District of Maryland analyzed the nuances of consent and revocation under the TCPA.

At the heart of the dispute was whether Plaintiff Smith had expressly consented to receive automated calls, and, if so, whether he had effectively revoked this consent. ExamWorks, seeking summary judgment, argued that consent obtained by Plaintiff’s insurer extended to it, as ExamWorks was conducting an independent medical examination (IME) related to Smith’s insurance claim. The company posited that since Smith had allegedly provided his cellphone number during the claim process, this constituted prior express consent, negating any TCPA violation.

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Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.

Facts

In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).

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Eastern District of Missouri Finds Standing Issue with TCPA Cases When Plaintiffs do Not Request to be on Internal Do-Not-Call Lists

The United States District Court for the Eastern District of Missouri recently issued an opinion with significant implications for plaintiffs’ standing to allege violations of the TCPA under Article III.  In the case of Thompson v. Genesco, Inc. (2024 WL 81187), the court addressed the critical question of whether the plaintiff had Article III standing to bring his TCPA claim.

Dennis Thompson filed a lawsuit against Genesco, Inc. in Missouri state court, alleging that Genesco had unlawfully sent him unwanted marketing text messages in violation of the TCPA and its accompanying regulations. Genesco removed the case to federal court, and the court, sua sponte, ordered supplemental briefing to address whether Thompson had Article III standing to maintain his lawsuit.

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