Deanna J. Hayes, Michael P. Daly, Author at TCPA Blog

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:

Another Court Rejects Threadbare Allegations of So-Called Vicarious Personal Jurisdiction

The District of Arizona recently dismissed Winters v. Grand Caribbean Cruises, Inc., No. 20-0168, 2021 WL 511217 (D. Ariz. Feb. 11, 2021), for lack of personal jurisdiction, finding that the plaintiffs had failed to establish that the caller’s contact with Arizona could be imputed to Grand Caribbean.

The plaintiffs alleged that Grand Caribbean violated the TCPA by using a prerecorded voice to initiate calls to numbers on the Do-Not-Call Registry. Grand Caribbean moved to dismiss for lack of personal jurisdiction, among other things.

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Eastern District of California Adds to Creasy Split

As we have reported on here, here, here, and here, a growing number of district courts are issuing opinions addressing whether they have subject matter jurisdiction over TCPA claims alleging robocall violations that occurred when the government debt exception invalidated by Barr v. APPC, 140 S. Ct. 2335 (2020), was part of the statute. The Eastern District of California recently added to this line of cases, joining courts that have held that “the TCPA remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020.” See Stoutt v Travis Credit Union, No. 2:20-cv-01280, 2021 WL 99636, at *3 (E.D. Cal. Jan. 12, 2021).

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District Court Dismisses Ex-Attorney and TCPA Serial Litigant’s Claims with Prejudice

On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.

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Supreme Court Declines to Resolve Whether Its Bristol-Myers Squibb Decision Applies to Class Actions

The Supreme Court recently declined to review the Seventh Circuit’s ruling in Mussat v. IQVIA, Inc., 953 F.3d 441 (7th Cir. 2020), which found that the logic of Bristol-Myers Squibb Co. v. Superior Court of California, 582 US (2017) did not apply to class actions and therefore that a federal court in Illinois somehow had specific personal jurisdiction over the individual claims of unnamed class members who had no connection whatsoever to that forum state.

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California District Court Criticizes Creasy, Concluding Barr Decision does not Deprive it of Jurisdiction

A district court from the Central District of California cast its lot against the growing argument that federal courts lack jurisdiction over TCPA claims based on conduct that occurred when the government debt exception was part of the statute. See Shen v. Tricolor California Auto Group, LLC, No. 20-7419, 2020 WL 7705888, at *1 (C.D. Cal. Dec. 17, 2020).

As our regular readers know, the government debt exception—a relatively new addition to the TCPA—was recently severed from the statute by the Supreme Court’s decision in Barr v. AAPC. Since, several federal district courts have questioned whether they may enforce the statute as to claims based on conduct that allegedly occurred while the exception was part of the statute, i.e. from November 2, 2015 through July 6, 2020. Most notably, the Eastern District of Louisiana concluded in Creasy v. Charter Communications that the Barr decision held that the TCPA was unconstitutional in its entirety during the pendency of the exception, that courts lack authority to enforce a constitutional statute, and that courts therefore cannot hear claims based on conduct during that period.

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Is Florida Queasy About Creasy?

On the same day last week, two different judges in the Middle District of Florida issued divergent decisions regarding the effect of the Supreme Court’s holding in Barr v. AAPC, 140 S. Ct. 2335, 2347 (2020). One followed the Eastern District of Louisiana’s groundbreaking decision in Creasy v. Charter Communications and the Northern District of Ohio’s subsequent decision Lindenbaum v. Realgy. But the other is notable because it broke with those decisions, marking the first time a court has rejected them. Compare Hussain v. Sullivan Buick Cadillac-GMC Truck, No. 20-0038, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020) (following Creasy) with Abramson v. Fed. Ins. Co., No. 19-2523, 2020 WL 7318953 (M.D. Fla. Dec. 11, 2020) (rejecting Creasy).

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District of Nevada Applies Agency Principles to TCPA Suit Against Messaging Platform and Consumer-Info Company, Dismisses Claims

Last week, the District of Nevada contributed to a growing consensus among Ninth Circuit district courts that TCPA liability generally does not extend to companies that produce equipment used to place unlawful calls—such as messaging platforms and contact lists— because the entities that use such equipment usually do so on behalf of another company, and not the equipment provider.

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District Court (Again) Holds Text Messages Insufficient to Confer Article III Standing

The Southern District of Florida recently dismissed a TCPA claim sua sponte for lack of subject matter jurisdiction, finding that the plaintiff had not alleged a concrete injury-in-fact. See Perez v. Golden Trust Insurance, Inc., 470 F. Supp. 3d 1327 (S.D. Fla. 2020).

Perez alleged that Golden Trust had violated the TCPA when, without his consent, it used an ATDS to send two telemarketing text messages to his cell phone. Golden Trust argued that the complaint should be dismissed because Perez did not properly allege the use of an ATDS.

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What’s in a Name? Not a Certified Class

The Tenth Circuit kicked off the holiday season with a little TCPA humor. In Rivera v. Exeter Finance Corp., No. 20-1031, 2020 WL 6844032, at *1 (10th Cir. Nov. 23, 2020), the Tenth Circuit Court of Appeals was confronted with a case about “[p]esky robocalls: we all get them, we all hate them, and yet we cannot seem to get rid of them, no matter how many times we unsubscribe, hang up, or share choice words with the machine on the other end of the line.” The plaintiff evidently “share[d] this sentiment” with Justices Tymkovich, Briscoe, and Murphy, but also figured that he was “not the only one suffering from [defendant]’s vexatious robocalls” and brought a putative class action. Id.

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