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District of Arizona Denies Certification of Claims Against Defendant That Had Defaulted

A TCPA defendant in Arizona federal court recently uncovered what appears to be a previously undiscovered silver-lining to a default judgment: a denial of class certification.

In Heidarpour v. Secured Mktg. Concepts Corp., 2025 WL 764287, at *1 (D. Ariz. Mar. 11, 2025), the plaintiff brought a putative TCPA class action for alleged telemarketing calls that were placed without the prior express written consent of call recipients. When the defendant failed to appear, the plaintiff moved simultaneously for default judgment and class certification. The court denied class certification, explaining that “even if permissible, certifying a class when a defendant is in default may not be prudent.” Id. at *2.

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Seventh Circuit Affirms Summary Judgment and Adopts Narrow Interpretation of “Telephone Solicitations”

The Seventh Circuit recently affirmed entry of summary judgment against a TCPA plaintiff and adopted the Eastern District of Wisconsin’s interpretation of the phrase “telephone solicitations.” Hulce v. Zipongo, Inc., — F. 4th —, 2025 WL 829603 (7th Cir. 2025). The Seventh Circuit held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” The Hulce plaintiff could not meet this standard because the services at issue were offered to him free of charge. The decision solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years.

James Hulce, a Wisconsin resident who received his health care through Medicaid, opted to enroll in Chorus Community Healthcare Plans (CCHP). CCHP, in turn, contracted with Defendant Zipongo, Inc. (d/b/a Foodsmart) to advertise nutritional consultations to its members. The consultations were offered to members at no cost. Hulce alleged that he received approximately twenty calls and text messages from Foodsmart despite his registration on the national do-not-call list and his requests for further communications to cease.

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Whirlwind of Activity Ends With Eleventh Circuit Invalidating FCC’s Lead Generation Rule

Our regular readers will no doubt be familiar with the one-to-one-consent and logically-and-topically-related requirements the FCC (under the prior administration) had tried to impose as a way to close what it had described as a “lead generator loophole.” On Friday, the FCC (now under a new administration) postponed the effective date of the rule, the validity of which was still being reviewed by the Eleventh Circuit Court of Appeals. Later that day, the Eleventh Circuit issued its ruling in that appeal, finding that the rule is invalid. As a result, in the absence of further appellate review of that ruling, the proposed rule is no more.

The Eleventh Circuit’s decision should be read by anyone who litigates in this space, or indeed in any space where alleged liability is premised on supposed violations of federal or state regulations. The main question on appeal was whether the FCC had statutory authority to impose the new one-to-one-consent and logically-and-topically-related requirements. The Eleventh Circuit found that it did not, as the FCC only has statutory authority to “implement” the TCPA, and the plain language of the TCPA “requires only ‘prior express consent’ — not ‘prior express consent’ plus.” Opinion at 14. As the Eleventh Circuit explained, “implement” means “to complete,” “perform” and “carry into effect,” not to “alter.” Id.

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Python Bites Back: Counterclaims Based on Alleged Consent Survive Plaintiff’s Motion to Dismiss

TCPA defendants often assert, in either a motion to dismiss or answer (or both), that a plaintiff gave prior express consent to receive the calls or text messages at issue. But it is the exceptional case where a defendant actually files a counterclaim against a plaintiff on this ground. Rarer still is the case where a plaintiff then moves to dismiss that counterclaim. This series of events is precisely what occurred, however, in Estrada v. Aragon Advertising, LLC, et al., No. 4:23-3407, 2024 WL 5059166 (S.D. Tex. Dec. 10, 2024).

Plaintiff Nelson Estrada (Plaintiff) filed a putative class action claiming TCPA violations by Defendants Aragon Advertising, LLC (Aragon) and Python Leads, LLC (Python) (collectively, “Defendants”). Plaintiff alleged that Aragon bought leads from lead generators, including Python, to obtain consumer contact information, and then Defendants made prerecorded telemarketing calls to people who had never consented, had no established business relationship with Defendants, and/or had placed their numbers on the national do-not-call registry.

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