Matthew J. Adler, Andrew C. Scarafile, Author at TCPA Blog

Matthew J. Adler

Matthew Adler is a trusted advocate and counselor who litigates complex commercial disputes and putative class actions for companies in the retail, technology, insurance, automotive, construction and telecommunications industries. He is known to be a persuasive writer and even-keeled problem-solver who provides practical, cost-effective solutions for his clients. Matt has defended numerous class actions, in state and federal court, involving claims of false advertising, fraud, breach of contract, breach of warranty and alleged violations of the Telephone Consumer Protection Act (TCPA) and of California’s consumer protection statutes, the Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumers Legal Remedies Act (CLRA).

View the full bio for Matthew J. Adler at the Faegre Drinker website.

Articles by Matthew J. Adler:

Federal Court Dismisses Action for Lack of Personal Jurisdiction Due to Insufficient Agency Relationship

A recent decision from the U.S. District Court for the Southern District of Indiana demonstrates how a defendant may successfully challenge personal jurisdiction when the facts fail to show vicarious liability through a principal-agent relationship.

In Roehrman v. McAfee, LLC, No. 23-2146, 2024 WL 5008043, at *2 (S.D. Ind. Dec. 6, 2024), the plaintiff sued McAfee, claiming TCPA violations based on allegedly unsolicited text messages that advertised McAfee’s services. McAfee moved to dismiss for lack of personal jurisdiction, arguing that it had not sent the texts at issue. Instead, they were sent by subcontractors (or sub-subcontractors) of one of McAfee’s vendors, without authorization by McAfee. Id. After learning of the texts, McAfee had sent cease-and-desist letters, stating that the text messages violated McAfee’s vendor terms. Id.

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Supreme Court to Address FCC’s Authority in TCPA Cases: McLaughlin v. McKesson Cert Grant

The Supreme Court has granted certiorari in McLaughlin Chiropractic Associates v. McKesson Corporation (No. 23-1226) to address whether the Hobbs Act requires district courts to follow the FCC’s interpretation that the TCPA does not prohibit faxes received via “online fax services.” This case revisits a key question left unresolved in 2019’s PDR Network v. Carlton & Harris Chiropractic about the binding nature of FCC orders in TCPA litigation. The Court’s decision could potentially determine whether and to what extent courts must follow FCC interpretations in TCPA cases going forward. Oral arguments have not yet been scheduled.

Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind.

First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL 1251108 (E.D. Wis. Mar. 18, 2024), the United States District Court for the Eastern District of Wisconsin granted the defendant’s motion for summary judgment, finding that an unsolicited advertising call must “encourage the purchase of any good or service.” Id. at *6 (emphasis added). The defendant’s services at issue, however, were being offered for free. Specifically, the defendant contracted with the Wisconsin Medicaid program to provide free nutritional consulting to state-funded plan holders. Defendant promoted its free services via calls and texts and would bill the state a fee “per eligible member per month, whether or not the member utilized [defendant]’s services.” Id. at *1. Plaintiff, a state-funded health plan user, sued defendant for approximately 20 calls and texts he received promoting defendant’s services. Id. Defendant moved for summary judgment on the grounds that, notwithstanding plaintiff’s advertising allegations, the calls and texts were distinct; they were not actually solicitations because they promoted a free service—at least to the plan holders. The court agreed and ruled in favor of the defendant.

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Missouri Federal Court Dismisses Another TCPA Claim Due to Traceability Issues

A federal judge in the United States District Court for the Eastern District of Missouri recently dismissed a claim alleging multiple violations of the TCPA’s do-not-call regulations upon finding that plaintiffs had failed to sufficiently plead the traceability element of standing. Thompson v. Vintage Stock, Inc., No. 4:23-cv-00042-SRC, 2024 WL 492052 (E.D. Mo. Feb. 8, 2024). This decision follows a similar ruling issued by the same judge just last month in another case involving the same plaintiffs (discussed here).

In the Vintage Stock case, the plaintiffs’ complaint asserted three counts: (1) violation of “the Federal Do Not Call List statute and regulations”; (2) violation of 47 C.F.R. § 64.1200(d); and (3) violation of Missouri’s no-call-list statute, MRS § 407.1098.

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Washington Federal Court Finds Sufficient Allegations of Prerecorded Calls But Dismisses Claims for Treble Damages and Injunctive Relief

Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).

The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.

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Recent Ninth Circuit Opinions Address Standing and the Meaning of ‘Automatic Telephone Dialing System’

The Ninth Circuit recently issued two noteworthy TCPA decisions. Most recently, in Borden v. eFinancial, LLC, No. 21-35746, 2022 WL 16955661 (9th Cir. Nov. 16, 2022), the Court addressed one of the most hot-button issues in this space: the definition of “automatic telephone dialing system” (“ATDS”). Shortly before that, in Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022), the Ninth Circuit discussed both Article III and statutory standing.

Borden and the ATDS Definition

In a unanimous opinion, the Ninth Circuit recently affirmed the dismissal of a text message TCPA suit based on its holding that to qualify as an ATDS, dialing equipment “must generate and dial random or sequential telephone numbers,” not just any numbers. See Borden, 2022 WL 16955661, at *1.

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FCC Acts to Curb Foreign-Originated Illegal Robocalls, Imposes Several New Requirements on Gateway Providers

Recently, on May 20, 2022, the Federal Communications Commission (“FCC”) issued a Report and Order (“Order”), as well as a Further Notice of Proposed Rulemaking (all available here), with a plain objective: to “take further steps to stem the tide of foreign-originated illegal robocalls and seek comment on additional ways to address all such calls.” Order ¶ 1. As stated by the FCC, “reducing illegal robocalls that originate abroad is one of the most vexing challenges we face in tackling the problem of illegal robocalls.” Id. The Order was adopted by a unanimous, 4-0 vote by the FCC after it had received comments over the last nine months on various topics, including whether so-called “gateway providers” should be required to authenticate caller identification information and implement other efforts to reduce the number of illegal prerecorded and/or artificial voice “robocalls” originating overseas.

A “gateway provider” is a U.S.-based provider that acts as an intermediary for an international call by receiving a call directly from a foreign provider before transmitting that call downstream to other U.S.-based providers for termination. Order ¶ 25. This definition is not static but rather one that applies on a call-by-call basis, i.e., a provider is a gateway provider—and subject to the FCC’s new Order—only for those calls in which it acts as a gateway provider. Id. ¶ 28. Per the FCC, commenters “overwhelmingly” supported the imposition of additional requirements on gateway providers in order to “stop the flood of foreign-originated illegal calls.” Id. ¶ 21.

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Single Fax Received by E-Mail Deemed Insufficient to Confer Article III Standing

As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.

But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.

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