The Middle District of Florida recently held that a defendant cannot invoke the “emergency purposes” exception to the TCPA if the defendant continues to send messages after the plaintiff has instructed the defendant to stop. In Farhat v. Unique Healthcare Systems, Inc., the Plaintiff claimed that her healthcare provider had sent her four messages within a four-week period with regard to free COVID-19 testing at the Defendant’s locations.
Author Archives: Deanna J. Hayes
Fifth Circuit Finds Injury In Fact after Single Text Message
The Fifth Circuit recently held that a TCPA plaintiff who received a single text message suffered an Article III injury sufficient to support standing for his claim. In Cranor v. 5 Star Nutrition, L.L.C., No. 19-51173, 2021 WL 2133433 (5th Cir. May 26, 2021), the plaintiff alleged that 5 Star Nutrition violated the Telephone Consumer Protection Act (TCPA) when it sent him several unsolicited advertising text messages. The parties entered into a settlement agreement to avoid litigation. After the settlement, 5 Star Nutrition sent one final promotional text message and the plaintiff filed suit, claiming that the single text message harmed him by invading his privacy, interfering with his right to his cellular phone and telephone line, and intruding upon his seclusion.
Another Fifth Circuit Court to Follow in Creasy’s Footsteps
The Eastern District of Texas recently dismissed a plaintiff’s TCPA claim in Cunningham v. Matrix Financial Services, LLC, No. 4:29-cv-896 (E.D. Tex. Mar. 31, 2021) for lack of subject matter jurisdiction.
This decision came after the District Court rejected the magistrate judge’s recommendation that subject matter jurisdiction was proper. The recommendation focused on the Supreme Court’s recent decision in Barr v. American Association of Political Consultants (“AAPC”), 140 S. Ct. 2335 (2020), which held that the government-debt exception violated the First Amendment. The magistrate judge noted that, following AAPC, the majority of district courts had held that federal courts retained subject matter jurisdiction over TCPA claims brought under § 227(b)(1)(A)(iii) during the exception’s existence. Those that did not were deemed unpersuasive given that “[t]he Supreme Court in AAPC explicitly found that the government-debt exception in the TCPA was severable from the remainder of the statute and declined to strike down the TCPA’s entire robocall ban.” Further, the magistrate judge reasoned that “[t]he dispositive inquiry lies in . . . [footnote twelve of AAPC]”, which stated that the AAPC Court’s “decision does not negate the liability of parties who made robocalls covered by the robocall restriction.”
Southern District of California Dismisses TCPA Claim Due to Speculative ATDS Allegations
The Southern District of California recently dismissed the TCPA case Hildre v. Heavy Hammer, Inc., No. 3:20-cv-00236, 2021 WL 734431 (S.D. Cal. Feb. 25, 2021), for the plaintiff’s failure to adequately allege that the defendants had used an automatic telephone dialing system (“ATDS”) when placing calls.
The plaintiff alleged that the defendants called him using an ATDS without first obtaining his consent. Specifically, he claimed that the out-of-state defendant called him twice using a California telephone number. After the first call, plaintiff claimed that he asked to be removed from the call list. When plaintiff received the second call, he alleges that there was a “noticeable pause” after he answered.
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.
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.
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.
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.
Southern District of Florida Court Holds that TCPA Plaintiff is Not the “Called-Party” Due to Call Forwarding
A court in the Southern District of Florida recently held that the plaintiff in a TCPA suit was not the “called party” under the statute because he received the calls in question only because his cousin rerouted them to the plaintiff’s phone. Thompson v. Portfolio Recovery Associates, LLC, No. 19-62220 (S.D. Fla. Apr. 25, 2020).
In Thompson v. Portfolio Recovery Associates, LLC, Plaintiff Andrew Thompson brought a TCPA suit against PRA—a debt collection company—for seventeen calls made to the Plaintiff’s cousin’s VoIP number that were automatically rerouted by the Plaintiff’s cousin to Plaintiff’s phone and answered by Plaintiff.
Supreme Court Holds Oral Argument via Teleconference in Barr v. American Association of Political Consultants
On May 6, 2020, the Supreme Court held oral argument via teleconference in Barr v. American Association of Political Consultants. The argument focused on the two questions presented in Barr. First, whether the Telephone Consumer Protection Act’s (TCPA) government debt exception is an unconstitutional content-based restriction on speech. And second, if the government debt exception is unconstitutional, whether the remedy is to sever the exception or instead strike the TCPA’s restrictions on automated telephone equipment in their entirety. A recording of the argument is available below (audio begins at the :30 mark) and a transcript is available on the Supreme Court website.