Author Archives: Marsha J. Indych

TCPA Plaintiff Argues He Wasn’t Injured in Attempt to Dodge Federal Jurisdiction

February 24, 2021
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Actual Harm, Jurisdiction, Standing

Usually, it is the plaintiff that argues he or she was injured, not the defendant. But, in an effort to stay in state court, some TCPA plaintiffs have taken the counterintuitive position that they did not suffer an injury in fact under Article III of the U.S. Constitution and, therefore, their claims cannot be heard in federal court.

“[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000).

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Eastern District of Texas Holds that Professional TCPA Litigant Can Face Counterclaims for Fraud

February 15, 2021
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Abusive Lawsuits, Counterclaim, Professional Plaintiffs

A federal magistrate judge in the Eastern District of Texas recently addressed a question of first impression for the jurisdiction: Can professional plaintiffs who manufacture TCPA claims face counterclaims for fraud brought by the defendant in an abusive lawsuit? According to the magistrate and the district judge that adopted her recommendation, the answer is yes.

In Cunningham v. USA Auto Protection, LLC, the plaintiff—professional litigant Craig Cunningham—alleged that defendant USA Auto Protection (USA Auto) made over twenty telemarketing calls to Cunningham’s cell phone without his consent. Case No. 4:20-cv-142, 2021 WL 434243, at *1 (E.D. Tex. Jan. 8, 2021).

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Professional Plaintiff Who Manufactured Claims Can Sue But Can’t Represent Class

December 29, 2020
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Abusive Lawsuits, Class Certification, Professional Plaintiffs, Standing, Telemarketing, Vicarious Liability

A recent denial of a professional plaintiff’s motion for class certification shows that, irrespective of whether such plaintiffs have standing to sue on their own behalf, courts are increasingly skeptical that contrived claims are amenable to class treatment. See Hirsch v. USHealth Advisors, LLC, No. 4:18-CV-00245-P, 2020 WL 7186380, at *1 (N.D. Tex. Dec. 7, 2020).

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The Sixth Circuit Adopts Expansive Interpretation of ATDS

August 11, 2020
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Automatic Telephone Dialing System, Supreme Court

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.)

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Supreme Court Agrees To Review ATDS Definition

July 9, 2020
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Automatic Telephone Dialing System, Supreme Court

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

July 8, 2020
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Automatic Telephone Dialing System, Debt Collection, Exemptions, First Amendment, Strict Scrutiny, Supreme Court

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.

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Text Messages Inviting Independent Voters to Political Speeches by Former Presidential Hopeful Howard Schultz Were Not “Solicitations” For His Book Tour

November 1, 2019
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Do-Not-Call Rules, Political Calling, Text Messages

The Western District of Washington recently held in Vallianos. v. Schultz, C19-0464-JCC, 2019 WL 4980649 (W.D. Wash. Oct. 8, 2019), that two text messages encouraging recipients to view a livestream of a political speech by the former chairman and CEO of Starbucks Howard Schultz did not amount to “solicitations” under the TCPA. While exploring a run for President, Schultz released a book, “From the Ground Up,” and went on a three-month long cross-country book tour. He also collected from voter records the phone numbers of individuals registered as having “No Party Affiliation” and sent them the text messages at issue. Named plaintiffs Cassandra Vallianos, Stacey Karney, and Mike Barker brought a putative TCPA class action against Schultz alleging that the text messages were sent to them without their consent after they had placed their cell phone numbers on the national Do Not Call Registry.

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Fourth Circuit Expands Liability by Striking Federal Debt Exemption—But Not Entire TCPA—on First Amendment Grounds

April 26, 2019
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First Amendment, Political Calling

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   »

Mind the Details: Defendant Observes that Key FCC Order Never Took Effect; Wins Judgment on Pleadings

October 11, 2018
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Consent, Debt Collection, FCC, Government Calls

A new case out of Indiana, Sanford v. Navient Solutions, LLC, 2018 WL 4699890 (S.D. IN Oct. 01, 2018), underscores the importance of delving into the details of the FCC materials on which plaintiffs rely to support their claims.

In Sanford, relatively straightforward allegations—the defendant’s continued use of autodialed calls after the plaintiff revoked consent—were complicated by the fact that the federal government owned the debt at issue in the calls. The TCPA prohibits “mak[ing] any call (other than a call made for emergency purpose or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to “a cellular telephone service   . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Continue reading   »