Kevin H. DeMaio, Author at TCPA Blog

Kevin DeMaio

Kevin DeMaio represents a wide range of clients in civil litigations. Kevin’s experience includes a variety of complex commercial and business disputes, including disputes involving contracts, commercial leases and consumer class actions.

View the full bio for Kevin DeMaio at the Faegre Drinker website.

Articles by Kevin DeMaio:

Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement” within the meaning of the TCPA. The outcome hinged on the specific content of the fax at issue.

Plaintiff alleged that Caremark—a pharmacy benefits manager—violated the TCPA when it sent a fax announcing a new option for healthcare services provided by Caremark’s clients. The fax explained that Caremark’s clients had “the option to apply” a new limit on certain prescriptions and explained that certain prescriptions were exempt from this new limit. Caremark (and its vendor that sent the fax at issue) moved for summary judgment. The district court granted the summary judgment motion, and Plaintiff appealed arguing that the fax was an “unsolicited advertisement” within the meaning of the TCPA. The Eighth Circuit disagreed and affirmed the district court’s summary judgment decision.

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W.D.N.Y. Court Dismisses Claim, Finding a School District Is Not a “Person” Under the TCPA, Plaintiff Appeals

The Western District of New York in Clark v. Buffalo City School District, Case No. 1:21cv00700, 2021 WL5764703 (W.D.N.Y. Oct. 28, 2021) recently granted a motion to dismiss because the defendant (a school district) was not a “person” within the meaning of the TCPA and could not be liable under the Act. As we previously explained here, this decision creates a significant obstacle for plaintiffs who wish to go after school districts and other government actors for alleged TCPA violations.

Plaintiff alleged that Buffalo City School District violated the TCPA when it called and left voicemails on his cell phone. Buffalo City School District moved to dismiss Plaintiff’s complaint arguing, among other things, that it was not a “person” within the meaning of the TCPA and could not be liable under the Act. The Court agreed (without reaching the school district’s other arguments).

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S.D. Cal. Court Dismisses Claims, Finding Text Messages at Issue Were Not “Telephone Solicitations”

The Southern District of California recently granted (in part) a motion to dismiss in Gross v. GG Homes, Inc., 2021 WL 2863623 (S.D. Cal. 2021), because the text messages at issue were not “telephone solicitations” within the meaning of the TCPA. Notably, the Court found that the text messages did not qualify as solicitations because they were “targeted at procuring services from Plaintiff” (as opposed to selling something to Plaintiff).

Plaintiff alleged that Defendant (a real estate firm) violated the TCPA when it sent text messages (and placed calls) to her cell phone. Defendant filed a motion to dismiss challenging her Article III standing as well as the sufficiency of her factual allegations for her TCPA claims. The Court began by rejecting Defendant’s arguments that Plaintiff lacked standing, that Plaintiff failed to allege facts showing that Defendant might be responsible for the texts at issue, and that Plaintiff failed to allege that Defendant used an ATDS to send the text messages. But the Court agreed with Defendant that Plaintiff’s § 227(c) claims—based on sending the text messages to a number on the national Do-Not-Call Registry—must be dismissed.

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S.D. Fla. Court Remands Case to State Court, Finding No Article III Injury

The Southern District of Florida recently remanded a case back to state court because the defendant that removed the case failed to establish that plaintiff suffered an Article III injury. Harris v. Travel Resorts of America, Inc., Civ. No. 2:20-14369-AMC (S.D. Fla. Mar. 31, 2021). Notably, the Court also found that plaintiff should be able to recover its attorneys’ fees in seeking remand given the defendant’s reversing its prior position on whether the Court had subject-matter jurisdiction over the case.

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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.

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Nine Amicus Briefs Filed in Support of Attempt to Invalidate TCPA Autodialer Ban

On April 1, 2020, nine amicus briefs were filed in Barr, et al. v. American Association of Political Consultants, et al., currently pending in the Supreme Court, in support of an attempt to invalidate the TCPA’s ban on autodialed calls and texts to cellphones. The ban generally restricts persons or entities from placing automated calls or texts to cell phones without the recipients’ prior express consent. A host of businesses and associations affected by the ban—including Facebook and businesses from the energy, financial services, and tech industries—filed the amicus briefs and argued the TCPA’s blanket ban on autodialed calls and texts to cell phones should be struck down.

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E.D. Pa. Court Dismisses Case, Finding That Fax Was Not An Advertisement

The Eastern District of Pennsylvania recently granted a motion to dismiss in a putative TCPA class action because the plaintiff failed to plausibly allege that the fax at issue constituted an unsolicited advertisement. Mauthe v. Spreemo, Inc., No. 18-CV-1902, 2019 WL 342715 (E.D. Pa. Jan. 28, 2019). The outcome hinged on the specific content of the fax at issue. Continue reading “E.D. Pa. Court Dismisses Case, Finding That Fax Was Not An Advertisement”