In a TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a claim under the TCPA rather than allege adequate factual support, and dismissed plaintiff’s complaint without prejudice. See Hunter v. Diversified Consultants, Inc., No. 8:14-cv-2198, 2014 U.S. Dist. LEXIS 165355 (M.D. Fla. Nov. 26, 2014). The complaint contained only the following factual allegations: First, that “[d]uring the past 48 months prior to the filing of this complaint, Defendant contacted Plaintiffs’ [sic] cell phone without express permission with an automated dialing system”; and second, “Defendant called Plaintiffs’ [sic] cell phone intentionally and repeatedly, without express permission and with an automated telephone dialing system…” Id. at *2.
Faegre Drinker
Articles by Faegre Drinker:
The FCC’s Clarification of its Blast Fax Rules to “Solicited” Fax Ads under Siege
In an attempt to clear out the backlog of numerous pending petitions addressing how the FCC’s “Blast Fax” rules apply to consensual fax advertisement transmissions, the agency on October 30, 2014 issued an Order addressing the need for and form of opt-out notices required for fax ads. The FCC’s rules since 2006 have contained a requirement that opt-out information be displayed on the faxed ad and that that notification requirement applies to both solicited fax ads, which are sent with the recipients’ prior express permission or invitation, and to non-solicited fax ad transmissions. A large number of Blast Fax lawsuits have involved fax ads reportedly sent with prior express consent but that may have lacked the required FCC opt-out notification or that failed to use the exact language the FCC rule appeared to require. Many defendants in these lawsuits beat a path to the FCC seeking either relief from or clarification of opt-out requirements, claiming in some cases confusion about when opt-out notices were in fact required.
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Political Campaigns: Consider Yourself Warned
If you had not noticed, the fall election campaign season is in full swing. The FCC’s Enforcement Bureau certainly has noticed, and reacted by releasing an unusual “Enforcement Advisory” this week, reminding campaigns and campaign promoters that there are TCPA limits on permissible uses of prerecorded voice message and autodialed calls in election campaigns. Restrictions on acceptable modes of communication vary depending upon whether a campaign or campaign promoter is delivering a call to a residential landline phone or a cell phone, which can be difficult to tell if a phone number has been recycled. Nevertheless, the Enforcement Advisory highlights a $2.9 million proposed fine levied against Dialing Services, LLC earlier this year for its alleged infractions of FCC requirements and warns all entities engaged in campaign calling and texting that they ignore FCC rules and restrictions at their peril of becoming subject to possible FCC enforcement scrutiny and fines. Fines for violations can go as high as $16,000 per violation, which is computed by call or text rather than by telemarketing campaign found to be impermissible by the Enforcement Bureau. While courts are the favored venue of the plaintiffs’ bar for seeking damages, the FCC’s Enforcement Bureau is aggressively staking out its own regulatory turf as the gubernatorial and congressional campaigns use as many tools as possible to galvanize potential voters.
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ZocDoc Treats Doctor With Some Rule 68 Medicine
We have discussed several TCPA mootness decisions, mainly those coming out of the federal courts in Florida. Those cases hold that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempted Rule 68 offer of judgment “pick-off.” We now turn our attention to the Southern District of New York, which recently found a TCPA plaintiff’s claim mooted by an offer of judgment made after the plaintiff’s “placeholder” motion for class certification was filed and before that motion was ruled upon.
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Somewhere Out There, a Certain Gecko Lets Out a Sigh of Relief
Judge Kathleen M. Williams of the Southern District of Florida handed GEICO a decisive victory on September 29, 2014, when she denied a renewed motion to certify a class of individuals who purportedly received robo-calls from GEICO because she found that the plaintiff failed to provide sufficient proof of numerosity.
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Eighth Circuit Reverses Summary Judgment, Directs Trial Court to Determine Whether Consent Was Revoked
In an unpublished, per curiam decision, the Eighth Circuit recently reversed the entry of summary judgment in favor of a defendant and directed the district court to address whether the plaintiff had revoked his consent to being called on his cell phone. Brenner v. Am. Ed. Servs., No. 14-1340, 2014 U.S. App. LEXIS 18416 (8th Cir. Sept. 26, 2014).
Court Rules That Settlement Term Sheet Is Not Worth The Paper It’s Written On
Judge Amy J. St. Eve of the Northern District of Illinois recently held that a purported settlement agreement in a putative class action filed by Craftwood Lumber Co. against Interline Brands, Inc. was not enforceable. See Craftwood Lumber Co. v. Interline Brands Inc., No. 11-4462 (N.D. Ill. Sep. 23, 2014). Judge St. Eve held that the “Term Sheet” executed at the end of the parties’ mediation session lacked sufficient detail to establish that a binding and enforceable settlement had been reached.
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W.D. Wash. Adopts Preponderance of the Evidence Standard for Elements of Class Cert., Rejects Numerosity Experts
The Western District of Washington recently adopted a “preponderance of the evidence” standard for establishing the prerequisites of Federal Rule of Civil Procedure 23 and denied class certification in a TCPA case because the plaintiffs’ expert testimony did not meet the rigors of even a preponderance standard. See Southwell v. Mortgage Investors Corp. of Ohio, No. 13-1289 , 2014 U.S. Dist. LEXIS 112362 (W.D. Wash. Aug. 12, 2014).
Capital One Agrees to $75 Million TCPA Settlement
Capital One and three collections agencies recently announced the largest proposed cash settlement in TCPA history – $75.5 million. This is more than double the amount of the prior record – a $32 million settlement from Bank of America.
The plaintiffs allege that Capital One and the other defendants used an ATDS to place debt collection calls to 21 million cell phone numbers without the requisite consent. Under the terms of the proposed settlement, Capital One will contribute $73 million to the settlement fund, while AllianceOne Receivables Management Inc., Leading Edge Recovery Solutions, LLC and Capital Management Services, L.P. will contribute $1.4 million, $996,205 and $24,220, respectively. The settlement agreement estimates that claimants will receive at least $20-$40 and allocates up to 30% of the settlement fund for an award of attorneys’ fees and costs in an amount to be set by the court. The settlement fund is non-reversionary. Capital One also agreed to take steps to ensure TCPA compliance going forward though it expressly disclaimed any liability in connection with the settlement.
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FCC Seeks Comment on Petition Concerning Prior Express Consent
On August 1, 2014, the FCC issued a Public Notice seeking comment on a petition filed by Santander Consumer USA, Inc. (“Santander”), which requests an expedited declaratory ruling from the FCC to clarify the meaning of “prior express consent” with respect to non-telemarketing calls and text messages to cellular telephones, which include informational messages (e.g., messages regarding school closings or messages containing flight status information) and debt collection messages under the TCPA. Comments in response to the Public Notice are due September 2, 2014, and reply comments are due September 15, 2014.
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