The Southern District of Indiana recently entered summary judgment against a certified class of TCPA plaintiffs because it concluded that defendants’ SoundBite platform did not qualify as an ATDS under the standard the Seventh Circuit recently established in Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 2020). Lanteri v. Credit Prot. Ass’n, L.P., No. 13-cv-01501, 2020 WL 3200076, *8 (S.D. Ind. June 15, 2020). Our previous coverage of Gadelhak can be found here. The Lanteri v. Credit Protection Association, L.P. decision illustrates that Gadelhak provides defendants facing TCPA claims in the Seventh Circuit with strong defenses to ATDS allegations.
Justin O. Kay
Articles by Justin O. Kay:
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.
FCC Issues Ruling Applying TCPA’s “Emergency Purposes Exception” To Calls Addressing Health and Safety Risks Arising Out Of COVID-19 Pandemic
Acknowledging that “effective communications with the American public” is “a critical component” to efforts to slow the spread of the coronavirus, the Federal Communications Commission (FCC) released on its own motion, a declaratory ruling on March 20, 2020, addressing the applicability of the “emergency purposes” exception to the TCPA’s prohibition against making automated and prerecorded calls without prior express consent. This declaratory ruling is meant to provide “hospitals, health care providers, state and local health officials, and other government officials” peace of mind when sending important COVID-19 information through automated calls or texts.
As readers of the blog are well aware, the TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” 47 U.S.C. §§ 227(b)(1)(A)-(B). The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The FCC’s declaratory ruling officially acknowledges the undeniable point that the COVID-19 pandemic constitutes an “emergency” under the TCPA. Earlier this month, on March 13, 2020, the White House declared a national emergency in light of the COVID-19 outbreak in the United States. As of March 20, 2020, all fifty states and the District of Columbia had declared states of emergency, which have led to many cities closing schools, workplaces, parks, restaurants, and houses of worship. Public safety organizations and institutions providing healthcare services, in particular, are changing modes of operation and means of handling some public-facing tasks. For example, many health care clinics have broadened their telemedicine programs or have begun conducting new patient intake “virtually” to triage patients with flu-like symptoms. These changes need to be communicated to existing and prospective patients in a timely manner on a large scale.
Seventh Circuit Disagrees with Ninth Circuit and Joins the Third and Eleventh Circuit in Adopting a Narrow Interpretation of ATDS
In a decision released on February 19 that relied principally on rules of grammar, the Seventh Circuit held that to be an ATDS under the TCPA, a device must be capable of storing or producing telephone numbers using a random or sequential number generator, not merely capable of storing numbers. Gadelhak v. AT&T Services, Inc., No. 19-1738 (7th Cir. Feb. 19, 2020). As such, it affirmed the District Court’s decision (albeit based on a different interpretation of the TCPA) that granted summary judgment in favor of AT&T where AT&T’s customer management tool “dials numbers only from a customer database.” In so holding, the Seventh Circuit joined the Third Circuit’s and the Eleventh Circuit’s (which we blogged about here) narrow interpretation of ATDS and widened the split with the Ninth Circuit’s expansive interpretation. Compare Glasser v. Hilton Grand Vacations Co., 2020 WL 415811 (11th Cir. Jan. 27, 2020) & Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018) with Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018).
Serial TCPA Plaintiff Suffers Another Defeat
The United States District Court for the District of Connecticut recently dealt another blow to serial TCPA plaintiff, Gorss Motels, Inc., granting summary judgment to the defendant in Gorss Motels, Inc. v. Lands’ End, Inc., No. 17-cv-00010, 2020 WL 264784 (D. Conn. Jan. 16, 2020). This is the latest in a series of adverse decisions—including from a Court of Appeal—suffered by Gorss Motels.
Continue reading “Serial TCPA Plaintiff Suffers Another Defeat”
The Eleventh Circuit Holds That Receipt of a Single Text Does Not Satisfy Article III
The Eleventh Circuit recently held that receiving a single unsolicited text message does not amount to the harm required to sustain a TCPA claim. In Salcedo v. Hanna, John Salcedo brought a TCPA claim against his former attorney after receiving one multimedia text message offering a ten percent discount on future legal services. Salcedo filed suit in district court as the representative of putative class members of former Hanna clients who received similar texts. The district court denied the defendants’ motion to dismiss for lack of standing. In an unusual step, the Eleventh Circuit agreed to hear the case on interlocutory appeal, and reversed the district court’s decision. In so doing, it created a circuit split on Article III standing and a significant hurdle for certifying TCPA class actions in the Eleventh Circuit.
Fourth Circuit Expands Liability by Striking Federal Debt Exemption—But Not Entire TCPA—on First Amendment Grounds
Just as political campaign season begins to heat up, the Fourth Circuit has delivered what must be an unsatisfying victory to a group of political consultants, pollsters, and organizations that had challenged the constitutionality of the TCPA on First Amendment grounds. Am. Ass’n of Political Consultants, Inc. v. FCC, No. 18-1588 (4th Cir. Apr. 24, 2019). Although the challenge had been brought by political groups, the Fourth Circuit’s decision has wide-ranging implications for organizations that collect federal debts. Indeed, the Fourth Circuit may have handed an unexpected gift to the plaintiffs’ bar. Continue reading “Fourth Circuit Expands Liability by Striking Federal Debt Exemption—But Not Entire TCPA—on First Amendment Grounds”
Defendant in Marks v. Crunch San Diego, LLC Abandons Appeal
As we previously reported here, last fall the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) purported to expand the definition of an automatic telephone dialing system (“ATDS”) by holding that an ATDS is any “equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person).” (emphasis added). Continue reading “Defendant in Marks v. Crunch San Diego, LLC Abandons Appeal”
Court Denies “Individualized Challenges” to Class Members’ Right to Recover
The Northern District of Illinois recently issued an order that denied defendants an opportunity to present “individualized challenges” to the members of a certified class in a TCPA fax case. The court determined that the defendants waived their right to challenge whether certain members of the class were entitled to recover because defendants did not assert their objections at the time the court approved the initial class notice. Continue reading “Court Denies “Individualized Challenges” to Class Members’ Right to Recover”
District Court Applies TCPA’s Plain Language to Grant Defendants Summary Judgment
Recently, the Eastern District of Michigan granted a motion for summary judgment in Gary v. Trueblue, Inc., No. 17-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018), after finding that a plaintiff failed to show that defendants’ telephone dialing system qualified as an ATDS under the statute’s plain language. This decision adds to the growing list of cases applying the plain language of the statute in the wake of ACA International. Continue reading “District Court Applies TCPA’s Plain Language to Grant Defendants Summary Judgment”