In Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit weighed in on the definition of an ATDS, joining the Second and Ninth Circuits in reading it expansively. The opinion was issued twenty days after the Supreme Court agreed to review this issue, following a growing split among the circuit courts. (Click these links for our previous blogposts about decisions from the Second, Seventh, Eleventh, Ninth, Third, and D.C. Circuits.)
Author Archives: Ingrid D. Johnson
The First Amendment Battleground: SCOTUS Asked to Review Two Ninth Circuit Decisions on the Constitutionality of the TCPA
In the span of fifteen days, TCPA defendants in two separate cases asked the U.S. Supreme Court to review two distinct but interwoven Ninth Circuit decisions on the constitutionality of the TCPA. Specifically, Facebook, Inc. and Charter Communications, Inc. are each asking the Court to rule that the TCPA’s prohibitions on calls made using an ATDS or an artificial or prerecorded voice contravene the First Amendment because they are “content-based” restrictions on speech and that the Ninth Circuit erred in “remedying” the constitutional violation—by severing the TCPA’s exemption for calls made to collect a government debt—rather than invalidating the entire statute. Facebook, Inc. v. Duguid, Petition for Writ of Certiorari, No. 19-511 (Oct. 17, 2019) (“Facebook Petition”); Charter Commc’ns, Inc. v. Gallion, Petition for Writ of Certiorari, No. 19-575 (Nov. 1, 2019) (“Charter Petition”). The two cases represent the most recent escalation of the growing trend in litigation challenging the TCPA’s ability to withstand First Amendment scrutiny.
Court Denies Class Certification Due to Individualized Issues Regarding Recipients’ Consent to Receipt of Faxes
In E&G, Inc. v. Mount Vernon Mills, Inc., No. 17-0218, 2019 WL 4032951 (D.S.C. Aug. 22, 2019), the District of South Carolina denied class certification because individualized issues—specifically, whether recipients had consented to receive the fax at issue—predominated.
Plaintiff E&G, Inc. (“E&G”), a hotel franchisee of Wyndham Worldwide Corporation (“WWC”), received a fax from WWC that included advertisements from certain approved WWC vendors, including defendant Mount Vernon Mills, Inc. (“Mount Vernon”). E&G’s franchise agreement with WWC allowed WWC to offer assistance with purchasing supplies and to provide lists of preferred suppliers. E&G provided WWC with its fax number and updated its contact information over the course of several years.
Eighth Circuit Finds that Telemarketer’s Plausible Belief of Consent to Calls Supports Radical Reduction of Statutory Damages Award
In Golan v. FreeEats.com, Inc., No. 17-3156 (8th Cir. July 16, 2019), the Eighth Circuit affirmed a trial court’s radical, post-trial reduction of damages in a TCPA case.
Although the trial court originally awarded the plaintiffs more than $1.6 billion in statutory damages, it later slashed the award by 98 percent to approximately $32.4 million. The plaintiffs appealed that decision. (The plaintiffs also appealed the trial court’s rejection of their preferred jury instruction on direct liability, which the Eighth Circuit also affirmed.) Continue reading
Court Denies Class Certification in Favor of Fitness Club: Plaintiff Failed to Show Commonality in Her Claim Theory and Applicable Consumer Contracts
The U.S. District Court for the Southern District of Florida recently issued two opinions in one case—Powell v. YouFit Health Clubs, LLC—that highlight the hurdles that plaintiffs can face in demonstrating typicality, ascertainability, and predominance when TCPA claims purportedly arise from consumer contracts.
In Powell v. YouFit Health Clubs, LLC, No. 17-62328, 2019 WL 926131 (S.D. Fla. Jan. 14, 2019), Traci Powell alleged that YouFit Health Clubs had violated the TCPA by sending “dual purpose text messages.” Plaintiff claimed that she was a former member of YouFit and that, after she cancelled her membership and paid her outstanding balance, she received two text messages that stated, in relevant part, “YOUFIT BALANCE FORGIVENESS: Get 1 year for $99 . . . to clear your past due balance.” She claimed that the texts had falsely stated that consumers had balances due on their accounts and had been sent without their consent. Continue reading
N.D. Cal. Court Grants Summary Judgment, Finding that Text Messages Were Neither Advertising Nor Telemarketing
The Northern District of California recently granted summary judgment dismissing a plaintiff’s TCPA claim based on text messages that confirmed plaintiff’s hotel reservations and encouraged him to download defendant’s app. Phan v. Agoda Co. Pte. Ltd., No. 16-CV-07243-BLF, 2018 WL 6591800 (N.D. Cal. Dec. 13, 2018). The case turned on whether the texts constituted advertising or telemarketing—thus requiring plaintiff’s prior express written consent. After considering “[b]oth the context and the content of the messages,” the court held that the texts were neither advertising nor telemarketing, and granted summary judgment in defendant’s favor because it was undisputed that plaintiff had given the requisite consent for informational or transactional texts. Continue reading