Last Friday, Facebook and the United States government filed briefs in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the growing circuit split over the interpretation of the definition of an ATDS. The Supreme Court granted certiorari in July, agreeing to review a Ninth Circuit decision that had reversed the dismissal of claims targeting Facebook’s login text alerts.
Michael Daly
Articles by Michael Daly:
Court Dismisses Conclusory RICO Claim Against Professional Plaintiff
The Eastern District of Pennsylvania recently dismissed a RICO lawsuit against a serial TCPA plaintiff, finding that, while the conduct alleged “might be unseemly,” it did not amount to racketeering activity. Jacovetti Law, P.C. v. Shelton, No. 2:20-cv-00163, 2020 WL 5211034, at *3 (E.D. Pa. Sept. 1, 2020).
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Court Finds that Debt Collection Makes Use Of Random or Sequential Number Generation Implausible
In a victory for debt collectors, the Central District of Illinois recently found that a plaintiff’s bare-bones allegations regarding use of an ATDS were particularly implausible because “the business of the defendant is such that it would not need a machine with random or sequential number generation capacities.” Mosley v. Gen. Revenue Corp., No. 20-01012, 2020 WL 4060767, at *3 (C.D. Ill. July 20, 2020).
In Mosley v. General Revenue Corp., the plaintiff alleged that a debt collection company used an ATDS and prerecorded messages to call her cellular telephone without her consent. Id. at *1. She claimed the calls concerned debts that were not hers, and some calls started with short pauses and “dead air.” Id.
Court Refuses to Reduce $925M in Aggregate Statutory Damages
The District of Oregon recently found that a $925,220,000 damages award was not unconstitutionally excessive, reasoning that due process does not limit the aggregate statutory damages that can be awarded in a class action lawsuit under the TCPA. Wakefield v. ViSalus, Inc., No. 3:15-cv-1857, 2020 WL 4728878 (D. Or. Aug. 14, 2020).
As we previously explained, when the trial court denied the plaintiff’s request for treble damages, the jury in the Wakefield case found that the defendant had violated the TCPA by placing 1,850,436 telemarketing calls. Id. at *1. Because the TCPA’s minimum statutory penalty is $500 per violation, the defendant faced aggregate damages of $925,220,000. Id. at *2.
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No Agency, No Personal Jurisdiction
We have previously written about decisions that dismissed TCPA claims because plaintiffs could not allege or prove facts establishing that the party making the offending calls was acting as an agent for the named defendant. The Northern District of Illinois recently applied these principles to dismiss claims against a defendant for lack of personal jurisdiction.
Supreme Court Agrees To Review ATDS Definition
Earlier today, the United States Supreme Court granted the petition for certiorari in which Facebook had asked the Court to resolve the growing circuit split regarding the definition of an ATDS. The Court limited its review to the second question presented, namely “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” This comes hot on the heels of the Court’s ruling earlier this week on the constitutionality and severability of the government-debt exception to the statute’s restrictions on automated telephone equipment.
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Supreme Court Strikes Government-Debt Exception But Saves Other Restrictions on Automated Telephone Equipment
On July 6, 2020, the Supreme Court issued a highly anticipated—and highly fractured—ruling in Barr v. American Association of Political Consultants. The nine Justices produced four opinions, none of which commanded a majority. But six of the Justices agreed that the TCPA’s government-debt exception violated the First Amendment, and seven agreed that it could be severed from the rest of the TCPA. The result, then, is that the exception was stricken but the restrictions on automated telephone equipment were saved.
Writing for the plurality, Justice Kavanaugh made quick work of the government’s argument that the exception was content-neutral: “A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets.” Because the exception was content-based, the plurality applied strict scrutiny—a standard that the government had conceded it could not satisfy.
Supreme Court Issues Highly Anticipated First Amendment Ruling in Barr v. AAPC
This morning, the United States Supreme Court issued its highly anticipated ruling in Barr v. American Association of Political Consultants. The decisions are fractured, but a majority of the Justices coalesced around finding that the federal debt-collection exception (1) violated the First Amendment but (2) could be severed from the statute such that the restrictions on automated telephone equipment remain in place. Notably, however, Justice Gorsuch filed and Justice Thomas joined a separate opinion that poked holes in the remedy—which is to say, the absence of a remedy—and urged the Court to revisit its approach to severability in general. We are reviewing the various opinions and will report back with a more thorough analysis shortly.
Divided Third Circuit Panel Holds that Offers to Buy Can Qualify as “Advertisements” Under the TCPA
A divided panel of the Third Circuit Court of Appeals recently reversed the dismissal of TCPA claims, finding that the faxes at issue were advertisements within the meaning of the TCPA. Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). The Court made this finding even though the faxes at issue did not attempt to sell anything, but rather contained offers to buy the recipients’ services.
In Fischbein, the Third Circuit heard two consolidated appeals in which plaintiffs alleged that the defendants had violated the TCPA by sending them faxes that offered money in exchange for responses to market research surveys. Id. at 561. In both cases, the trial court dismissed the claims because the faxes were not an attempt to sell anything, and thus were not “advertisements” such that the sender needed a recipient’s prior express consent. A divided panel of the Third Circuit disagreed because, in its view, an offer to buy products, goods, or services can also qualify as an advertisement under the TCPA. Id. at 561.
FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers
On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”