Michael Daly
Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.
View the full bio for Michael Daly at the Faegre Drinker website.
Articles by Michael Daly:
The Northern District of Texas recently denied class certification in Rhonn Mitchell v. Toyota of Dallas, a putative class action arising from allegations that Toyota of Dallas (TOD) had violated the TCPA by sending marketing text messages to customers who had previously opted out of such communications. See 2025 WL 3013789 (N.D. Tex. Oct. 28, 2025). This case illustrates the teeth of the predominance inquiry and the importance of maintaining consent records, which are significant evidence even when held in varying formats.
Plaintiff Rhonn Mitchell alleged that, after purchasing a used car, he received repeated marketing texts from TOD despite alleging that he had opted out of receiving such messages. Alleging that TOD had sent over 16,000 texts to more than 1,500 customers after they had similarly opted out, Mitchell sought to certify both nationwide and Texas-only classes of consumers.
Continue reading “Class Certification Runs Out of Gas Over Consent Questions”
Each election cycle includes at least one cautionary tale about potential pitfalls of political calling. This one was no exception, as the Northern District of Illinois provided a helpful reminder that, depending on their content, political communications could be considered “solicitations” such that certain calling restrictions apply. See Evers v. CampaignSidekick, LLC, No. 24 CV 11067, 2025 WL 2896818 (N.D. Ill. Oct. 10, 2025).
The Plaintiff in Evers sued CampaignSidekick, a vendor that promotes voter outreach. Specifically, the Plaintiff asserted claims about: (1) using a prerecorded voice; and (2) calling numbers that were on the National DNC Registry.
Continue reading “Court Finds Political Texts Were Not Solicitations, Dismisses Do Not Call Claim”
A judge in the Middle District of Florida recently dismissed Do-Not-Call claims under the TCPA, holding that “a text message is not a telephone call.” El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025).
The court explained that “it is only th[r]ough the rulemaking authority of the FCC that the voice call provisions of the TCPA have been extended to text messages. … However, a District Court is not bound by the FCC’s interpretation of the TCPA.” Id. at 1.
Continue reading “Another Florida Federal Court Finds Do-Not-Call Regulation Inapplicable to Text Messages”
The Fourth Circuit, on appeal from the Eastern District of Virginia, recently upheld the denial of class certification due to the unreliability of the plaintiff’s expert opinion regarding the ascertainability of putative class members. See Davis v. Capital One N.A., No. 22-0903, 2025 WL 2445880 (4th Cir. 2025).
The plaintiff allegedly received multiple prerecorded messages to his cell phone regarding an unpaid debt owed by a different consumer from whom the phone number had been reassigned. The calls allegedly continued even after the plaintiff called to inform Capital One that it had been calling the wrong person. The plaintiff eventually filed suit, asserting claims on behalf of himself and a nationwide class of unnamed consumers who had also received calls to reassigned numbers.
Continue reading “Fourth Circuit Affirms Exclusion of Ascertainability Expert and Denial of Certification”
A Florida federal court recently dismissed Do-Not-Call claims, holding that “a text message is not a ‘telephone call.’” Davis v. CVS Pharm., Inc., No. 24-0477, 2025 WL 2491195 (N.D. Fla. Aug. 26, 2025).
In Davis, the plaintiff alleged that CVS sent him unwanted text messages in violation of regulations prohibiting calls to individuals registered on the Do-Not-Call Registry. See 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(c)(2).
Continue reading “Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages”
A federal court recently dismissed Do-Not-Call claims after finding that, “based on a plain reading of the TCPA and its implementing regulations,” 47 U.S.C. § 227(c) “does not apply to text messages.” Jones v. Blackstone Med. Servs., LLC, No. 1:24-cv-01074, 2025 WL 2042764 (C.D. Ill. July 21, 2025).
In Jones, the plaintiffs alleged that they had received telemarketing texts about the defendant’s home sleep tests, despite their having placed their numbers on the National Do-Not-Call Registry and/or asking to be placed on the defendant’s Do-Not Call list. (Although they also made passing references to “calls” as well as “texts,” the court found that those allegations were neither well pleaded nor the crux of the claim.) They filed suit under 47 U.S.C. § 227(c), which concerns violations of Do-Not-Call rules.
Continue reading “McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts”
The Sixth Circuit recently affirmed the dismissal of a serial pro se litigant’s TCPA claims for failure to allege enough factual support. The case provides a useful primer on what a plaintiff must allege to state a claim under the TCPA’s autodialer or artificial/prerecorded voice provisions.
In Fluker v. Ally Fin., Inc., 2025 WL 1827747, at *1 (6th Cir. July 2, 2025), the plaintiff alleged violations of the TCPA arising from hundreds of debt collection calls that had allegedly been placed without his prior consent. The trial court held that Fluker had “fail[ed] to plausibly allege that Ally [Financial] made the phone calls using either (1) an automatic telephone dialing system, or (2) an artificial or prerecorded voice.” Id. at *2 (citing Fluker v. Ally Fin. Inc., 2023 WL 8881154, at *2 (E.D. Mich. Dec. 21, 2023)). The Sixth Circuit reviewed that dismissal de novo, finding that neither claim had been properly pleaded.
Continue reading “Sixth Circuit Finds That High Volume of Calls Does Not in and of Itself Make TCPA Claims Plausible”
Florida’s governor recently signed Senate Bill 232, amending Fla. Stat. § 559.72(17). Subsection 17 prohibits certain debt-collection “communications” to debtors between 9 p.m. and 8 a.m. Senate Bill 232 now clarifies that Subsection 17 does not apply to emails, ending the ambiguity that litigants faced due to differing court decisions. Given the proliferation of debt collection emails — which are used by 74% of debt collectors — Senate Bill 232’s enactment cuts off a significant source of potential liability.
Read the full article on the Faegre Drinker website
At a Glance
- Florida’s latest legislative session will close without action on two companion bills that would have limited the scope of the Florida Telephone Solicitation Act (FTSA).
- The bills were introduced after courts disagreed about whether the FTSA applies to solicitations by a nonprofit university.
- The bills would have amended the FTSA’s definitions to expressly exclude solicitations that nonprofits make for religious, charitable, political, or educational purposes.
- Although the same or similar bills may be introduced in the next legislative session, nonprofits should be aware of the uncertainty and proceed accordingly in the meantime.
Continue reading “FTSA’s Application to Nonprofits Remains Unsettled as Florida’s Legislative Session Will End Without Remedial Legislation”
A recent decision out of the Eastern District of Virginia, Matthews v. Senior Life Ins. Co., provides a helpful reminder that TCPA complaints do not satisfy Rule 8’s pleading standard if they do not plausibly link the defendant to the making of the calls or texts at issue — even if there is no dispute that the calls concerned the defendant’s goods or services. No. 24-1550, 2025 WL 1181789 (E.D. Va. Apr. 22, 2025).
In Matthews, the plaintiff allegedly received three scripted telemarketing calls asking qualifying questions about life insurance offered by the defendant, Senior Life Insurance Company (SLIC). Id. at *1. The plaintiff alleged that the questions were the same each time and, during one of those calls, he was connected to and then spoke with an SLIC employee. Id.
Continue reading “Court Dismisses TCPA Case Due to Failure to Plausibly Allege That the Defendant Made the Calls at Issue”
