Bradley Andreozzi

Bradley J. Andreozzi

Bradley Andreozzi defends clients in high-stakes civil litigation, with a particular focus on class action trials and appeals. Brad is among the relatively small group of lawyers who have tried class actions before juries. He also has won pretrial dismissals and defeated class certification in courts across the country and prevailed on appeal in defeating purported billion-dollar class claims. Brad has a reputation for innovative arguments that limit or defeat claims and for the strategic use of motion practice to position cases for an early cost-effective resolution or limit the size and exposure of the case should it move forward. In addition to his trial work, Brad has won appeals in virtually every federal appellate court, including the U.S. Supreme Court.

View the full bio for Bradley Andreozzi at the Faegre Drinker website.

Articles by Bradley Andreozzi:


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 Finds Complaint’s Ambiguity in Number of Calls Received Warrants Remand for Article III Standing Analysis

Recently, the Eleventh Circuit remanded a TCPA suit for the district court to rule on Article III standing, finding that the trial court should have addressed the standing issue because plaintiffs failed to plead the number of telephone calls allegedly received.

Sixteen plaintiffs in Evans v. Ocwen Loan Servicing, LLC, No. 21-14045, 2022 WL 17259718 (11th Cir. Nov. 29, 2022), alleged that defendants violated the TCPA by using an Automated Telephone Dialing System (ATDS) to call them.  The complaint included the exact number of calls allegedly received by only eight of the plaintiffs, and stated “that the ‘[e]xact number of calls’” received by the other eight was “‘not confirmed at this point.’”  Id. at *1.  The district court dismissed, concluding that the system at issue was not an ATDS.  The Court of Appeals vacated and remanded, however, finding that the district court failed to address “a significant jurisdiction issue.”  Id.

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ATDS Status Turns on Capability of Dialing Equipment, Not Actual Use, Third Circuit Holds—But Liability Turns on Actual Use, Not Mere Capability

Last week, the U.S. Court of Appeals for the Third Circuit concluded that the TCPA’s definition of “automatic telephone dialing system” (or “ATDS”) includes all dialing equipment with the present ability to generate random or sequential phone numbers and dial those numbers, regardless of whether the equipment’s owner actually uses those “ATDS functionalities.” But, importantly, a caller must actually use such functionalities in order to violate the statute’s prohibition on making autodialed phone calls, the Court further held.

In other words, a dialing system’s status as an ATDS turns on the system’s present capabilities, not how it is used. But whether a defendant is liable for using an ATDS turns on how the system is used, not just what it can do. Thus, the Court read the ATDS definition broadly but the liability provision narrowly, in a ruling that will give some comfort to companies that use their dialing equipment to contact customers or prospects from set lists, rather than to randomly generate phone numbers to be called indiscriminately.

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Internal DNC Policies Not Prerequisite to Using EBR Defense, Ohio Southern District Holds

Earlier this month, the U.S. District Court for the Southern District of Ohio clarified that a TCPA defendant need not maintain an internal do-not-call list and policies in order to invoke the “established business relationship” defense for telemarketing calls to numbers on the national DNC registry.

By way of background, the TCPA prohibits businesses from making “telephone solicitations” to phone numbers on the national DNC registry.  47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c).  However, telemarketing calls and messages can be sent to such numbers where the caller has an “established business relationship” with the recipient.  47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(15)(ii).  The FCC has defined an “established business relationship” (“EBR”) as a “relationship formed by a voluntary two-way communication” regarding a telephone subscriber’s recent purchase of or inquiry about a product sold by the caller.  47 C.F.R. § 64.1200(f)(5).  A subscriber can terminate the EBR at any moment by making a clear and specific request for the calls and/or messages to stop.  Id. § 64.1200(f)(5)(i).  Separately, 47 C.F.R. § 64.1200(d) requires entities who place telemarketing calls to keep an internal list of individuals who have requested not to receive calls and to maintain policies to ensure that the list is honored.

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Texts Regarding COVID Vaccine Eligibility Are Not Actionable Under TCPA, Texas Northern District Holds

The U.S. District Court for the Northern District of Texas recently held that unsolicited text messages that simply inform recipients of the availability of a free COVID-19 vaccine are protected by the “emergency purposes” exception to the TCPA’s prior express consent requirement and also do not qualify as telephone “solicitations” prohibited by the FCC’s do-not-call (DNC) rules.

In Horton v. Tarrant County Hospital District, No. 4:22-CV-9-P, 2022 WL 702536 (N.D. Tex. Feb. 4, 2022), the plaintiff alleged that he received a single unsolicited text message from the defendant, a public hospital district, announcing that “everyone ages 12 and up is eligible for the COVID vaccine.” Mr. Horton alleged that the text was sent without his consent in violation of the TCPA’s prohibition on autodialed calls as well as the rule against solicitations to telephone numbers on the national DNC list.

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Personal Cell Phones May Qualify as “Residential Telephones” Subject to DNC Rules, but Calls Made to a Pre-produced List Are Not ATDS Calls, Texas Northern District Holds

Last week, the U.S. District Court for the Northern District of Texas held that mobile phones may qualify as “residential telephones” when used (as the Complaint alleged) primarily for “personal, family, and household use,” and thus be subject to the TCPA’s do-not-call rules (47 C.F.R. §§ 64.1200(c) & (d)).  This issue has sewn disharmony among federal district courts and may draw attention from higher courts.  But the court also joined the growing number of courts following Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), that have agreed that calls specifically directed to persons on a pre-produced list (like plaintiff) are not calls made using a “random or sequential number generator” and thus are not subject to the TCPA’s prior express consent requirement for calls made using an ATDS.

In Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761 (N.D. Tex. Feb. 24, 2022), the plaintiff alleged that, over the course of last year, he received eight unsolicited phone calls and six SMS text messages on his cell phone from a number he didn’t recognize.  Hunsinger picked up one of the calls and spoke with a representative for the defendant, to whom Hunsinger gave his email address.  Hunsinger subsequently received several calls and texts from the defendant referring to Hunsinger’s conversation with the representative and asking if he was still interested in a transaction.  These calls and texts were sent using an ATDS, Hunsinger alleged.  At all relevant times, Hunsinger’s number was on the national DNC list.  Id. at *1.

Continue reading “Personal Cell Phones May Qualify as “Residential Telephones” Subject to DNC Rules, but Calls Made to a Pre-produced List Are Not ATDS Calls, Texas Northern District Holds”

“Pretext” Theory Could Turn Calls Regarding Free Health Care Services into Prohibited Solicitations, District of New Jersey Holds

The District of New Jersey recently endorsed the view that calls regarding the availability of free services may plausibly qualify, at the pleadings stage, as “telephone solicitations,” and as such be subject to the Do Not Call prohibition, where the calls are part of a larger marketing program for the defendant’s services. It also held, as the FCC has ruled, that the FCC’s exemption for calls that deliver a “health care message,” from a HIPAA-covered entity or its business associates, treats the calls differently based on whether the calls are delivered to a cell phone or a residential landline. Calls from such entities about health care, when made to wireless numbers, are exempt only from the requirement for written consent that applies to telemarketing calls. Unlike health care calls to residential landlines, these calls are not exempt from the TCPA’s general “prior express consent” requirement for prerecorded and autodialed phone calls, the court held.

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Defendants Suable in State Where Calls Inadvertently Received, If Similar Calls Purposefully Directed at Forum Residents, Tenth Circuit Holds

Last week, the U.S. Court of Appeals for the Tenth Circuit applied the Supreme Court’s recent Ford Motor decision on personal jurisdiction to a Rule 12(b)(2) motion to dismiss a TCPA claim.

In Hood v. American Auto Care, LLC, the plaintiff, Alexander Hood, alleged that the defendant (American Auto Care or “AAC,” a Florida company) violated the TCPA by directing automated calls to Mr. Hood’s cell phone without his consent.  No. 20-1157, 2021 WL 6122400, at *1 (10th Cir. Dec. 28, 2021).  According to the complaint, the calls were part of a sweeping telemarketing campaign by AAC that involved calling people from various states, including Vermont and Colorado, to advertise extended vehicle warranties sold by AAC.  Id.  Mr. Hood had previously lived in Vermont and had a Vermont cell phone number, but was living in Colorado at the time he received the calls.  Id.  The U.S. District Court for the District of Colorado granted AAC’s motion to dismiss for lack of personal jurisdiction, finding that the calls to Mr. Hood’s Vermont cell phone number did not “arise out of or relate to” calls that AAC directed at forum residents.  Id. 

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District Courts Find ATDS Allegations Implausible Following Facebook

Courts in the Southern District of California and District of Arizona recently added to the line of decisions addressing ATDS pleading requirements in the wake of the Supreme Court’s landmark ruling in Facebook v. Duguid.  Declining to infer that targeted text messages warranted an inference that the sender used an ATDS, the courts in Wilson v. rater8, LLC, et al., No. 20-cv-1515, 2021 WL 4865930 (S.D. Cal. Oct. 18, 2021), and DeClements v. Americana Holdings LLC, No. CV-20-00166-PHX-DLR, 2021 WL 5138279 (D. Ariz. Nov. 4, 2021), dismissed plaintiffs’ complaints for failure to sufficiently allege the use of an ATDS.

In Wilson v. rater8, the plaintiff filed a class action alleging that defendants violated the TCPA by sending him, after a medical examination, a text asking him to provide feedback regarding his examining physician.  2021 WL 4865930.  The plaintiff alleged that the text was sent using an ATDS.  The court granted defendants’ motion to stay pending the outcome of the Supreme Court’s decision in Facebook.  Following that ruling, defendants moved to dismiss, arguing that plaintiff did not allege sufficient facts to support the claim that an ATDS was used.

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PBM’s Policy Update Fax Not TCPA “Advertisement,” Says Eastern District of Missouri

Earlier this week, the U.S. District Court for the Eastern District of Missouri granted summary judgment for a pharmacy benefit manager (PBM) that allegedly violated the TCPA by sending unsolicited advertisements via fax to thousands of healthcare providers. The defendant was entitled to judgment as a matter of law, the court concluded, because the fax simply notified recipients of changes to insured patients’ coverage and did not promote any products or services.

The case began when a St. Louis healthcare provider (BPP) filed a complaint alleging that defendant CaremarkPCS Health, LLC, violated the TCPA when it sent an unsolicited fax to over 55,000 providers notifying them of new limits on insurance coverage for opioid prescriptions for pediatric and adolescent patients in plans sponsored by Caremark’s clients. BPP v. CaremarkPCS Health, LLC, No. 4:20-cv-126, 2021 WL 5195785, at *1 (E.D. Mo. Nov. 9, 2021). Caremark, which manages prescription drug benefits for various health insurers, asked for summary judgment on the ground that the fax was not an “advertisement” under the TCPA and that plaintiff’s claim therefore failed as a matter of law. Id.

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