Michael Daly

Michael P. 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:


Courts in Eleventh Circuit Find No Private Right of Action Under 227(c) for Texts

District courts in the Eleventh Circuit are increasingly finding that the private right of action for violation of the TCPA’s Do-Not-Call provisions does not apply to text messages. More recently, three judges in that Circuit dismissed claims under 47 U.S.C. § 227(c)(5), holding that the statute’s reference to “telephone calls” does not extend to text messages. See Radvansky v. Kendo Holdings, Inc., 23-0214, Dkt. 57 (N.D. Ga. Feb. 12, 2026) (May, C.J.) (entering judgment on the pleadings; this decision is now on appeal before the Eleventh Circuit); Radvansky v. 1-800-Flowers.com, Inc., 2026 WL 456919, at *3-5 (N.D. Ga. Feb. 17, 2026) (Thrash, J.) (granting motion to dismiss); Lopresti v. Nouveau Essentials Mktg. LLC, 2026 U.S. Dist. LEXIS 39599, at *6-13 (M.D. Fla. Feb. 26, 2026) (Lammens, M.J.) (recommendation to enter judgment on the pleadings). The Lopresti court also dismissed a claim under Section 227(b), which restricts the use of automated telephone equipment, for the same reason. Lopresti, 2026 U.S. Dist. LEXIS 39599, at *11-12.

These decisions are consistent with several earlier decisions in the Eleventh Circuit and one in the Central District of Illinois. See McGonigle v. Pure Green Franchise Corp., 2026 WL 111338 (S.D. Fla. Jan. 15, 2026) (Singhal, J.) (granting motion to stay discovery pending resolution of motion to dismiss); El Sayed v. Naturopathica Holistic Health, Inc., 2025 WL 2997759, at *2 (M.D. Fla. Oct. 24, 2025) (Merryday, J.) (granting motion to dismiss); Davis v. CVS Pharm., Inc., 797 F.Supp.3d 1270, 1272 (N.D. Fla. 2025) (Winsor, C.J.) (granting motion to dismiss); see also Jones v. Blackstone Med. Servs., LLC, 792 F.Supp.3d 894 (C.D. Ill. 2025) (Hawley, J.) (granting motion to dismiss; this decision is now on appeal before the Seventh Circuit).

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Fifth Circuit Find’s FCC’s “Prior Express Written Consent” Rule Exceeded Its Statutory Authority

The Fifth Circuit has rejected the FCC rule that has imposed a heightened “prior express written consent” requirement—a requirement found nowhere in the TCPA’s plain language—for more than a decade.  See Bradford v. Sovereign Pest Control of Texas, Inc., No. 24-20379, 2026 WL 520620, at *3 (5th Cir. Feb. 25, 2026). Citing the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), it found that the “prior express written consent” rule is unenforceable because the FCC had exceeded its statutory authority in enacting it.

From 1991 to 2012 — more than 20 years — it had been the FCC’s consistent position that consent can be “expressed” simply by providing one’s number — i.e., without a “written” or “signed” agreement. See, e.g., In re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, ¶ 31 (1992) (“[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called…”). It was not until 2013 that the FCC reversed course, enacting a rule requiring that consent for certain communication not only be “express” but also that it be “written,” “bear[] the signature of the person called,” and include various and sundry disclosures the FCC deemed desirable. See 47 C.F.R. §§ 64.1200(f)(9).

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TCPA Case Tossed Because Defendant’s Unequivocal Records Trumped Plaintiff’s Equivocal Recollection

A Texas district court entered summary judgment against a plaintiff who had brought TCPA claims against a debt collector, finding no genuine issue of fact because the plaintiff’s recollection was equivocal and the defendant’s records were not. The case is Anderson v. Monterey Financial Services, LLC, No. 6:25-cv-00102, 2026 WL 318773 (E.D. Tex. Jan. 16, 2026), in which the magistrate judge recommended granting the motion. That report and recommendation was adopted by the district court at 2026 WL 316533 (E.D. Tex. Feb. 5, 2026).

The plaintiff had sued Monterey Financial Services, LLC, claiming it had violated the TCPA by calling his cellphone in an effort to collect a debt, including after he had instructed it to stop calling him. The case was before the court on Monterey’s motion for summary judgment.

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Class Certification Runs Out of Gas Over Consent Questions

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.

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Court Finds Political Texts Were Not Solicitations, Dismisses Do Not Call Claim

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.

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Another Florida Federal Court Finds Do-Not-Call Regulation Inapplicable to Text Messages

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.

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Fourth Circuit Affirms Exclusion of Ascertainability Expert and Denial of Certification

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.

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Second Court Rules Do-Not-Call Regulation Does Not Apply to Text Messages

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).

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McLaughlin and Loper Bright Lead to Decision That TCPA Does Not Apply to Texts

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.

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Sixth Circuit Finds That High Volume of Calls Does Not in and of Itself Make TCPA Claims Plausible

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.

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