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:


FTSA Does Not Apply to Calls Selling Services to Businesses

The Middle District of Florida partially rejected a plaintiff’s motion for entry of final default judgment in Brown v. Care Front Funding, No. 8:22-cv-02408-VMC-JSS, 2023 U.S. Dist. LEXIS 60879 (M.D. Fla. Apr. 6, 2023), report and recommendation adopted, 2023 U.S. Dist. LEXIS 72933 (M.D. Fla. Apr. 26, 2023).

The plaintiff alleged that, despite being placed on the National Do-Not-Call Registry, she received three unsolicited calls from the defendant for the purpose of persuading her to obtain a business loan. After the defendant failed to respond to her complaint, the plaintiff moved for entry of default and then entry of default judgment. Magistrate Sneed found that the plaintiff had failed to allege that the calls were made for the solicitation of a sale of or extension of credit for any “consumer goods or services” for purposes of finding liability under the FTSA. The statute defines “consumer goods or services” as “real property or tangible or intangible personal property that is normally used for personal, family or household purposes . . . and any services related to such property.” Fla. Stat. § 501.059(1)(c). Magistrate Sneed noted that courts have interpreted similar statutes that provide for “consumer” protections related to goods and services that are primarily for personal, family, or household purposes to exclude goods and services in the business context.

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Legislature Poised to Overhaul Florida’s mini-TCPA

The Florida Legislature is moving quickly to pass significant remedial amendments to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) before the end of the legislative session this Friday.  Should the proposed amendments succeed, they would restrict the scope and substance of the statute in several important ways.

First, the amendments would narrow the categories of equipment that are covered by the statute.  Whereas the current autodialing restrictions apply to “automated system[s] for the selection or dialing of telephone numbers,” the amended autodialing restrictions would apply only to “automated system[s] for the selection and dialing of telephone numbers” (emphasis added). Note, however, that even the amended version would restrict “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”

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Established Business Relationship Defense Dooms Class Allegations

The Northern District of Illinois recently granted a TCPA defendant’s motion to strike class action allegations, reasoning that individual questions of consent and the availability of the established business relationship (“EBR”) defense made the claims unsuitable for class treatment.  The case is Sorsby v. TruGreen L.P., 2023 WL 130505 (N.D. Ill. Jan. 9, 2023).

The plaintiff alleged that, after cancelling her TruGreen lawn-care service and telling TruGreen not to call her, she received numerous calls from TruGreen to a number that was on the National Do-Not-Call Registry and should have been on TruGreen’s internal Do-Not-Call list.  TruGreen moved to strike the class allegations, arguing that plaintiff could not satisfy Rule 23’s requirements of typicality, commonality, and predominance.  The court agreed and struck the class allegations.

The court explained that the TCPA does not prohibit solicitations to customers with whom a business has an EBR.  Although the named plaintiff claimed to have terminated her own EBR, the availability of the EBR defense as to other class members was inherently individualized and not capable of being determined on a classwide basis.

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Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA.  The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients.  The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit.  Caremark (and its vendor that sent the fax at issue) moved for summary judgment.  The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA.  The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.

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Proposed Federal TCPA Legislation Offers a New and Broad ATDS Definition

On July 12, 2022, Representatives Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced H.R. 8334 in the U.S. House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”

The TCPA presently defines “automatic telephone dialing system” (or “ATDS”) as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator . . . to dial such numbers.”  The law generally prohibits any person from making nonconsensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.

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Eighth Circuit Finds That System That Sends Texts to Stored Numbers is Not an ATDS, Rejects Plaintiffs’ Interpretation of Footnote 7 in Facebook v. Duguid

Last week, the Eighth Circuit affirmed a finding that a dialing system does not qualify as an ATDS if it randomly selects numbers from a stored list. See Beal v. Truman Road Dev. (8th Cir. Mar. 24, 2022). The decision explains that dialing equipment is not an ATDS if it does not produce those numbers (either randomly or sequentially) in the first place, and is notable for flatly rejecting a misreading of Facebook v. Duguid that plaintiffs have been peddling for nearly a year now.

The court’s analysis turns on the mechanics of the dialing system and plain language of the statute. The defendants were drinking establishments that use the “Txt Live” platform to send promotional text messages to numbers that were manually entered by the defendant’s employees. Specifically, the platform allowed employees to filter down to a target list of recipients based on demographic factors, select the number of potential customers to receive the message, draft or select the content of the message, and then send messages to designated recipients. To do so, it “shuffles the target contacts using a numerically based randomizer. If the number of people who meet the filtered criteria exceed the number of people to whom the message will be sent, Txt Live selects the recipients at the top of the randomized list first.” Id. at 3.

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“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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Supreme Court Asked to Review Retroactivity of Barr v. AAPC

The retroactivity of the Supreme Court’s decision in Barr v. AAPC is back before the Supreme Court to decide—if, that is, it grants the petition for certiorari that was just filed by the Defendant in Lindenbaum v. Realgy.

Some background may help. As our regular readers know, Barr v. AAPC held that the TCPA’s exemption for federal debt-collection calls—and only federal debt-collection calls—was a content-based regulation of speech that violated the First Amendment. But rather than strike down all of the statute’s restrictions on automated equipment, the Court saved them by severing that one exemption from the statute.

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California Court Enters Summary Judgment Against Plaintiff Who Failed To Prove Vicarious Liability

A court in the Northern District of California recently granted a defense motion for summary judgment, finding that the defendants were not vicariously liable for a subcontractor’s supposed TCPA violations because the record showed that they had neither given the subcontractor authority to violate the TCPA nor ratified its acts.

In Schick v. Caliber Home Loans, Inc., defendant Caliber hired defendant NextLevel to generate leads for its home loan refinancing business. No. 20-CV-00617-VC, 2021 WL 4166906, at *1 (N.D. Cal. Sept. 14, 2021). Their contract mandated that NextLevel “perform or provide” its services “in full compliance with … all applicable federal, state, and local laws, regulations and ordinances.” Id. The contract further required that NextLevel “not allow any subcontractor … to perform or provide” services “without … prior written consent.” Id. Without Caliber’s consent, in violation of the subcontractor provision, NextLevel hired subcontractor Driving Force to provide leads. Id. After allegedly receiving two calls on a number on the national “Do Not Call” Registry, Plaintiff filed suit and sought to hold the defendants vicariously liable. Id.

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Private Cause of Action Exists for Violations of Do-Not-Call Rule, North Carolina Federal Judge Says

Last week, Judge James C. Dever III of the U.S. District Court for the Eastern District of North Carolina handed down a decision of first impression for that court: the FCC’s do-not-call rule, 47 C.F.R. § 64.1200(d), creates a private right of action for telephone subscribers who receive calls in violation of that rule’s “minimum standards.” The decision widens the growing split among federal courts as to which provision of the TCPA gives life to the DNC rule.

On its motion to dismiss, the defendant argued that the plaintiff could not maintain an action for alleged violations of § 64.1200(d) because the FCC promulgated that rule under 47 U.S.C. § 227(d), which does not create a private right of action for violations of implementing regulations. Fischman v. MediaStratX, LLC, No. 2:20-CV-83-D, 2021 WL 3559639, at *4 (E.D.N.C. Aug. 10, 2021). In opposition, the plaintiff argued that the rule was actually passed pursuant to 47 U.S.C. § 227(c), which does create a private right of action for such violations. Id.

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