As our regular readers know, one of the central issues in the ACA International case was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. The D.C. Circuit found that it did not. As we explained at the time, ACA International explicitly set aside the portion of the FCC’s July 2015 Order that pertained to the definition of an ATDS, and by doing so also implicitly set aside the FCC’s prior statements on this subject in prior orders. Continue reading “Conflicting Opinions Regarding the Validity of the FCC’s Pre-2015 ATDS Rulings”
Michael Daly
Articles by Michael Daly:
Court Denies Class Certification in Favor of Fitness Club: Plaintiff Failed to Show Commonality in Her Claim Theory and Applicable Consumer Contracts
The U.S. District Court for the Southern District of Florida recently issued two opinions in one case—Powell v. YouFit Health Clubs, LLC—that highlight the hurdles that plaintiffs can face in demonstrating typicality, ascertainability, and predominance when TCPA claims purportedly arise from consumer contracts.
In Powell v. YouFit Health Clubs, LLC, No. 17-62328, 2019 WL 926131 (S.D. Fla. Jan. 14, 2019), Traci Powell alleged that YouFit Health Clubs had violated the TCPA by sending “dual purpose text messages.” Plaintiff claimed that she was a former member of YouFit and that, after she cancelled her membership and paid her outstanding balance, she received two text messages that stated, in relevant part, “YOUFIT BALANCE FORGIVENESS: Get 1 year for $99 . . . to clear your past due balance.” She claimed that the texts had falsely stated that consumers had balances due on their accounts and had been sent without their consent. Continue reading “Court Denies Class Certification in Favor of Fitness Club: Plaintiff Failed to Show Commonality in Her Claim Theory and Applicable Consumer Contracts”
Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case
The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading “Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case”
California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him
Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.
In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading “California District Court Sends Plaintiff Back to the Drawing Board to Clarify Which of Six Defendants Actually Called Him”
Eastern District of Michigan Finds No Strict Liability for Faxes Sent Without Defendant’s Knowledge or Involvement
Recently, an Eastern District of Michigan court entered summary judgment in favor of a defendant upon finding that it had neither transmitted nor caused the transmission of the fax at issue. In Garner Properties & Management, LLC v. Marblecast of Michigan, Inc., the plaintiff alleged that it had received an unsolicited fax that referenced the products of two companies: Marblecast of Michigan and American Woodmark. The plaintiff sued both companies in a putative class action. American Woodmark eventually moved for summary judgment and argued that the plaintiff had failed to offer evidence from which a reasonable juror could conclude that it had “sent” the fax at issue. See 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless. . . .”) (emphasis added). In opposition, the plaintiff argued that American Woodmark was strictly liable as a sender under the TCPA because the fax had referenced its products. Continue reading “Eastern District of Michigan Finds No Strict Liability for Faxes Sent Without Defendant’s Knowledge or Involvement”
Courts Continue to Reject FCC’s Pre-2015 ATDS Rulings in Light of ACA International
In Johnson v. Yahoo!, Inc., No. 14-2028 (N.D. Ill.), the plaintiff alleged that Yahoo! violated the TCPA by automatically texting her after pulling her number from a database of stored numbers. The trial court initially denied Yahoo!’s motion for summary judgment because—based on FCC decisions from 2003, 2008 and 2012—it believed that there were genuine issues of material fact regarding whether the dialing equipment qualified as an ATDS. During the pendency of the case, however, the FCC issued its 2015 Declaratory Ruling & Order, which, as our regular readers well know, was appealed to and eventually rejected by the D.C. Circuit. Continue reading “Courts Continue to Reject FCC’s Pre-2015 ATDS Rulings in Light of ACA International“
FCC Adopts Order Creating a Centralized Reassigned Number Database
After several proceedings and requests for comment, the FCC has approved the creation of a single, centralized reassigned numbers database—a new resource to identify and avoid calling reassigned numbers. Ideally, the proposed database will help businesses in identifying numbers that are being recycled before they are called, thus helping to cut down on the number of calls consumers receive by mistake. This alert outlines the framework of the new database, including access, administration, types of information collected, usage, and potential costs and benefits.
Second Circuit Follows Seventh Circuit, Finds that Rule 67 Tender Does Not Moot Claims
Nearly three years ago, in Campbell-Ewald Co. v. Gomez, the Supreme Court held that claims are not mooted by unaccepted offers of complete relief under Rule 68 because they create neither an “obligation” to provide nor an “entitlement” to receive any relief. But the Court expressly left open the possibility that depositing the full amount of a plaintiff’s individual claim in an account payable to the plaintiff might be enough. Continue reading “Second Circuit Follows Seventh Circuit, Finds that Rule 67 Tender Does Not Moot Claims”
Continued Confusion Concerning Whether Professional Plaintiffs Have Standing
Two courts recently examined whether professional plaintiffs had standing to assert TCPA claims. Their decisions betray a continuing confusion concerning what it is that gives plaintiffs—particularly serial plaintiffs—standing to sue. See Cunningham v. Florio, No. 17-0839, 2018 WL 4473792 (E.D. Tex. Aug. 6, 2018); Morris v. Hornet Corp., No. 17-0350, 2018 U.S. Dist. LEXIS 170945 (E.D. Tex. Sept. 14, 2018). Continue reading “Continued Confusion Concerning Whether Professional Plaintiffs Have Standing”
Save the Date! Drinker Biddle’s TCPA Team to Host TCPA Conference on November 14th
Please join our TCPA Team and distinguished panelists in our Washington, D.C. office on the afternoon of November 14th to discuss the evolving regulatory landscape, best practices for mitigating risk, and strategies for defending suits brought under the TCPA. The FCC regulations that added fuel to the TCPA fire—and, perhaps not coincidentally, this blog—will soon enjoy their fifth anniversary. And yet class actions and compliance questions continue to mount. Our experienced regulatory and class action counsel will discuss these and other important issues with a number of special guests, including:
- Peggy Daley, Berkley Research Group
- Robert DeWitte, Kurtzman Carson Consultants LLC
- Mary Ellen Kleiman, National Association of Chain Drug Stores
- William Maxson, Federal Trade Commission
- Joseph Wender, Senior Policy Advisor, Office of U.S. Sen. Edward J. Markey
- Hassan Zavareei, Tycko & Zavareei LLP
CLE credits will be available and a cocktail reception will be held after the conference. If you would like to attend, please contact us at TCPAteam@dbr.com.