In a decision that many saw as lowering the bar for class certification, the Eighth Circuit recently reversed a trial court’s decision that a putative class was not readily ascertainable by reference to objective criteria. Sandusky Wellness Center LLC v. Medtox Scientific Inc., No. 15-1317, 2016 WL 1743037 (May 3, 2016). The Eighth Circuit held that classes must be readily ascertainable, which it had yet to squarely do, but found that this particular class was ascertainable, as it included individuals who “were sent” the fax at issue and “fax logs show[ed] the numbers that received faxes.” In doing so, it rejected the argument that fax logs do not necessarily identify the “recipient” of a fax who would have standing under 47 U.S.C. § 227(b)(1). Continue reading “Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria”
Michael Daly
Articles by Michael Daly:
Campbell-Ewald — The ‘Offer Of Judgment’ Saga Continues
“Welcome to the great new world of TCPA litigation – where a plaintiff turns up his nose at $10,000 in cash to compensate him for his receipt of a single targeted text message recruiting for the United States Navy, and where our courts stretch the limits of Article III to preserve his crusade for a would-be class of others similarly situated.”-Seamus Duffy
It’s becoming a strange, strange world when it comes to making offers of complete relief to named plaintiffs in class actions. Continue reading “Campbell-Ewald — The ‘Offer Of Judgment’ Saga Continues”
Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses
U.S. Senator John Thune (R-S.D.), Chairman of the Senate Committee on Commerce, Science, and Transportation, convened a full committee hearing yesterday titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business.” Witnesses at the two-hour hearing included the Attorney General of Indiana and representatives of the U.S. Chamber Institute of Legal Reform, the National Consumer Law Center, and the American Association of Healthcare Administrative Management. Chairman Thune opened the hearing with the following observations: Continue reading “Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses”
Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages
Yesterday the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, in which it was asked whether plaintiffs have Article III standing if they allege a bare violation of a statute (i.e., an injury in law) but no concrete harm (i.e., an injury in fact). Six of the eight sitting Justices agreed that an injury in law alone is insufficient and that plaintiffs must plead and prove concrete harm in order to satisfy Article III. Continue reading “Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages”
Supreme Court Issues Decision in Spokeo, Inc. v. Robins
This morning the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins, which vacates the Ninth Circuit’s decision and remands for further proceedings. We are reviewing the majority opinion from Justice Alito (in which Justices Roberts, Thomas, Breyer, and Kagan joined), the concurring opinion from Justice Thomas, and the dissenting opinion from Justice Ginsburg (in which Justice Sotomayor joined), and will report back shortly.
Freedom of Contract Appears Alive and Well in the Third Circuit
Two federal courts in the Third Circuit recently compelled individual arbitration in TCPA actions. See Raynor v. Verizon Wireless, No. 15-5914, 2016 U.S. Dist. LEXIS 54678 (D.N.J. Apr. 25, 2016); Herndon v. Green Tree Serv. LLC, No. 15-1202, 2016 U.S. Dist. LEXIS 53937 (M.D. Pa. Apr. 22, 2016). Issued just a few days apart in cases against a telecommunications provider and a mortgage broker, these decisions serve as a helpful reminder to businesses to consider including arbitration clauses in their consumer contracts—and to explore their applicability when facing TCPA litigation. Continue reading “Freedom of Contract Appears Alive and Well in the Third Circuit”
Federal Court Schools Plaintiff on Limits of TCPA
The Middle District of Florida recently entered summary judgment in favor of a school board, reasoning that it is not a “person” that is subject to suit under the TCPA. See Lambert v. Seminole Cty. Sch. Bd., No. 15-0078 (M.D. Fla. Jan. 21, 2016). The decision creates a potentially insurmountable obstacle for plaintiffs who have taken to setting their sights on school districts and other well intentioned government actors.
In Lambert, the defendant allegedly made 537 calls to the plaintiff’s cellphone shortly after he received a reassigned number. The calls used prerecorded voice prompts and messages that were meant to communicate with prospective substitute teachers, to whom the school district had issued five-digit identification codes. The plaintiff alleged that he was not the intended recipient of the calls and that he neither worked as a substitute teacher nor received an identification code. Continue reading “Federal Court Schools Plaintiff on Limits of TCPA”
TCPA and VoIP: Revisiting the Fourth Circuit’s Ruling In Lynn v. Monarch Recovery Management
In TCPA Blog’s latest Law360 column, contributors Eduardo Guzmán, Michael Daly and Anthony Glosson discuss the Fourth Circuit’s opinion in Lynn v. Monarch Recovery Management Inc. They explain that the opinion has analytical gaps, leaves unanswered questions, and does not mean that calls to residential VoIP-based telephony services should necessarily be treated differently than calls to other residential:
In short, unpublished opinion in Lynn v. Monarch Recovery Management Inc., the United States Court of Appeals for the Fourth Circuit stated that the “call-charged provision” of the TCPA applied to debt collection calls made to a residential VoIP-based line. The plaintiffs’ bar responded by suggesting that the TCPA applies differently to so-called “VoIP calls,” and telemarketing vendors responded by marketing services that scrub all numbers assigned to VoIP carriers — a move that, given VoIP’s increasing popularity, could end up eliminating a substantial percentage of residential numbers. However, a more objective analysis of the opinion and the issues suggests that these reactions may be overstated, if not altogether misplaced.
They go on to explain that predictions about the decision’s consequences may be wrong because it: (1) is unpublished and nonprecedential; (2) involved a highly unusual fact pattern; and (3) has serious gaps in its interpretation of the scope and application of the “call-charged provision.
Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete
On Wednesday the Joint Petitioners and the FCC filed their final briefs in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order, which is pending in the United States Court of Appeals for the D.C. Circuit. Their briefs are summarized below.
The Joint Petitioners’ Final Brief
The Joint Petitioners’ final brief reiterates their primary challenges to the FCC’s rulings regarding the definition of an ATDS, the identity of the “called party” from which consent must be obtained, and the extent of that party’s ability to revoke that consent. Continue reading “Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete”
Sixth Circuit Affirms Dismissal Of TCPA Claims Against Healthcare Providers’ Debt Collector
The Sixth Circuit recently affirmed the entry of summary judgment against plaintiffs who had not given their phone numbers to the debt collector that had called them or to the creditor to which they owed money. See Baisden v. Credit Adjustments, Inc., No. 15-3411, 2016 U.S. App. LEXIS 2465 (6th Cir. Feb. 12, 2016). In doing so, it agreed with the FCC and the Eleventh Circuit that “prior express consent” can be “obtained and conveyed via intermediaries,” in this case the hospital to which the plaintiffs had voluntarily given their numbers.
The plaintiffs were former patients at a hospital (Mount Carmel Hospital) who owed debts that were transferred from an affiliated anesthesiology practice (Consultant Anesthesiologists) to a debt collector (Credit Adjustments, Inc.). Both of the plaintiffs had signed admission forms that permitted the hospital to release their “health information” to third parties for purposes of “billing and payment” or “billing and collecting monies due,” among other things. Id. at *2-6. After the plaintiffs received calls from the debt collector regarding their debts, they filed a putative class action against the debt collector, the anesthesiology practice, and the hospital. Continue reading “Sixth Circuit Affirms Dismissal Of TCPA Claims Against Healthcare Providers’ Debt Collector”