Matthew Morrissey

Matthew M. Morrissey

Matthew Morrissey focuses his practice on high-stakes litigation. He frequently defends clients facing class actions arising under federal and state consumer protection and privacy laws. Matt also represents clients in complex commercial disputes, securities litigation and other financial services matters pending in courts across the country. Matt develops business-focused resolution strategies for clients in all phases of the litigation process. He has achieved significant victories in contentious disputes at both the trial court level and on appeal. He has also obtained highly favorable results in private arbitration and mediation proceedings.

View the full bio for Matthew Morrissey at the Faegre Drinker website.

Articles by Matthew Morrissey:


Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.

Facts

In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).

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Texas District Court Rejects “Influence Liability” Workaround to FCC Exemption for Research and Surveys

A recent decision from the U.S. District Court for the Northern District of Texas reaffirms the FCC’s interpretation that calls and text messages regarding consumer surveys and other market research do not qualify as restricted “telephone solicitations” or “telemarketing” under the TCPA or its implementing regulations.  Although the outcome in this case is a positive development, organizations that engage in these types of communications should continue to monitor and assess the state of the law in other jurisdictions.

In Hunsinger v. Dynata LLC, the plaintiff was a serial pro se TCPA litigant whose phone number was registered on the FCC’s national do-not-call list at all relevant times.  No. 22-cv-136-G-BT, 2023 WL 2377481, at *1 (N.D. Tex. Feb. 7, 2023).  Mr. Hunsinger alleged that he received a single call from an unidentified caller asking him to visit Dynata’s website.  Id.  Hunsinger thereafter sent a letter demanding a copy of Dynata’s DNC policy, but Dynata declined and argued that Hunsinger had no legal basis for his demand.  Id.  Hunsinger claimed that he directed Dynata to place his number on its internal DNC list but that he subsequently received a single SMS text message that contained a link to another website affiliated with Dynata.  Id. at *2.

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Eleventh Circuit Applies TransUnion and Vacates Class Certification

The Eleventh Circuit recently decertified a TCPA settlement class because the class definition included members who could never have Article III standing under Eleventh Circuit precedent.  Drazen v. Pinto, — F.4th –, No. 21-10199, 2022 WL 2963470, at *4-7 (11th Cir. July 27, 2022).  The court applied the U.S. Supreme Court’s holding in TransUnion LLC v. Ramirez and ruled that all members of a Rule 23(e) settlement class must have Article III standing to recover damages.  Id. at *5-6 (citing TransUnion, 141 S. Ct. 2190, 2208 (2021)).  The Drazen court expressly rejected the proposition that plaintiffs with no standing in the Eleventh Circuit could be part of a nationwide class, even if they may have standing in another circuit.  Id.  As of the date of publication, Drazen is the first and only decision from a federal appellate court that analyzes TCPA claims under the TransUnion rubric.  Although the impact of Drazen outside of the Eleventh Circuit remains unclear, the case demonstrates how courts may analyze Article III standing issues in TCPA class actions going forward.

As readers of this blog are aware, the U.S. Supreme Court issued its decision in TransUnion, LLC v. Ramirez last summer.  The decision reaffirmed that plaintiffs must demonstrate a “concrete harm” to establish Article III standing to sue in federal court.  TransUnion, 141 S. Ct. at 2200.  Moreover, in footnote 4 of the TransUnion decision, the Court explicitly stated that it was not addressing the “distinct question whether every class member must demonstrate standing before a court certifies a class.”  Id. at 2208 n.4.

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District of Connecticut Rejects ATDS Allegations in Complaint Against Subway

The District of Connecticut recently dismissed a TCPA action against the Subway Franchisee Advertising Fund Trust (“Subway”) because plaintiff failed to allege that Subway used an ATDS to send text messages to her cell phone.  Soliman v. Subway Franchisee Advertising Fund Trust Ltd., No. 3:19-cv-592, 2022 WL 2802347 (D. Conn. July 18, 2022).  The court held that “[t]he TCPA is clear:  a device is not an automatic telephone dialing system merely because it generates random or sequential index numbers that are used in turn to select which numbers to call from a stored list.”  Id. at *3 (emphasis in original).  The ruling serves as yet another example of a dialing technology that does not meet the definition of an ATDS following the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1171 (2021).

In Soliman, plaintiff alleged that she received a text message from Subway offering her a free bag of potato chips.  Id. at *1.  Plaintiff further alleged that she replied “STOP” to unsubscribe from the text messages but claimed that Subway texted her again a few days later.  Id. at *1.  Plaintiff subsequently filed a two-count class action lawsuit against Subway for negligently and intentionally violating the TCPA.  Id.  Subway filed a Rule 12(b)(6) motion to dismiss.  Id.

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Southern District of New York Denies Motion to Dismiss Because Plaintiff Sufficiently Alleged That He Was a “Residential Subscriber”

The TCPA’s Do Not Call (DNC) regulations prohibit telephone solicitations to “residential telephone subscriber[s]” who have “registered [their] telephone number on the national do-not-call registry.” See 47 C.F.R. § 64.1200(c)(2). However, as we noted in a recent post, several district courts have found that the term “residential telephones,” as used in the DNC regulations, may include cell phones under certain circumstances, such as when cell phones are used primarily for “personal, family, and household” matters. See Hunsinger v. Alpha Cash Buyers, LLC, 3:21-cv-1598-D, 2022 WL 562761, at *2 (N.D. Tex. Feb. 24, 2022) (collecting cases). Nonetheless, other courts have rejected this proposition. See id. at *2 (citing Callier v. GreenSky, Inc., EP-20-CV-00304, 2021 WL 2688622, at *6 (W.D. Tex. May 10, 2021)).

In Rose v. New TSI Holdings, Inc., the Southern District of New York recently held that a plaintiff alleged sufficient facts to survive a motion to dismiss arguing that plaintiff’s cell phone could not qualify as a “residential telephone.” No. 21-CV-5519, 2022 WL 912967 (S.D.N.Y. Mar. 28, 2022).  Specifically, plaintiff alleged that he received twelve unsolicited calls from 2018 through 2021 after he visited Boston Sports Club even though his number had been listed on the DNC Registry since 2004. He alleged that he received the messages even after he told defendant to stop calling/texting him at least five times, and that some of the calls included identical prerecorded promotional messages.

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Does Unused “Capacity” Make a Dialer an ATDS? District Court Says “No” in Ruling on Pleading Requirements After Facebook

Three months after the Supreme Court’s landmark Facebook ruling, a growing number of trial courts have grappled with interpreting and applying the High Court’s directive.  One of the more interesting decisions came out of the Eastern District of Michigan recently.  In Barry v. Ally Fin., Inc., No. 20-cv-12378, 2021 WL 2936636, at *1-7 (E.D. Mich. July 13, 2021), the district court dismissed a putative TCPA class action on the grounds that the plaintiff failed to allege use of an ATDS.  More significantly, the district court interpreted Facebook to hold that to be an ATDS, the dialing system must actually use a random or sequential number generator to call the plaintiff, and not merely have the capacity to do so.

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District Court Weighs in On TCPA Fax Liability Standards in the Eighth Circuit

The Eastern District of Missouri recently granted a plaintiff’s motion for summary judgment against three defendants in a TCPA fax case.  Levine Hat Co. v. Innate Intelligence, LLC, No. 16-cv-01132, 2021 WL 1889869 (E.D. Mo. May 11, 2021).  The court’s opinion discusses two areas of law with limited Eighth Circuit authority and illustrates the uncertainty regarding how district courts in the jurisdiction may rule on these issues in the future.  Id. at *3-5.  Specifically, the opinion discusses the analysis a court may apply to determine if a fax is an “unsolicited advertisement.”  Id. at *3-4.  The opinion also enumerates the factors a court may consider when assessing whether a “fax broadcaster” demonstrates a sufficiently “high degree of involvement” in the transmission of a fax to render it liable for the transmission.  Id. at *3-5.

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FCC Order Causes Confusion Regarding Consent Required for Informational Calls to Residential Landlines

On December 30, 2020, the FCC issued a Report and Order (the December 2020 FCC Order) to implement Section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The December 2020 FCC Order contains a critical internal inconsistency that has caused significant confusion regarding the level of consent required for certain prerecorded informational calls to residential landlines. As discussed below, the inconsistency is almost certainly the result of a drafting error.

The relevant terms of the TRACED Act state that the FCC must ensure that any exemptions to Section 227(b)(2)(B) or (C) of the TCPA include specific limits on “the number of such calls that may be made to a particular called party.” Dec. 2020 FCC Order ¶ 2 (citing TRACED Act, Pub. L. No. 116-105, 133 Stat. 3274, § 8 (2019)). The December 2020 FCC Order amends 47 C.F.R. § 64.1200(a)(3)(ii)-(iii) to limit the number of calls that a caller can make to a residential landline under the exemption for “informational” calls to three such calls within any thirty-day period.

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Is Florida Queasy About Creasy?

On the same day last week, two different judges in the Middle District of Florida issued divergent decisions regarding the effect of the Supreme Court’s holding in Barr v. AAPC, 140 S. Ct. 2335, 2347 (2020). One followed the Eastern District of Louisiana’s groundbreaking decision in Creasy v. Charter Communications and the Northern District of Ohio’s subsequent decision Lindenbaum v. Realgy. But the other is notable because it broke with those decisions, marking the first time a court has rejected them. Compare Hussain v. Sullivan Buick Cadillac-GMC Truck, No. 20-0038, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020) (following Creasy) with Abramson v. Fed. Ins. Co., No. 19-2523, 2020 WL 7318953 (M.D. Fla. Dec. 11, 2020) (rejecting Creasy).

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District Court Decertifies TCPA Class Due to Consent Issues

The Central District of California recently decertified a class of TCPA plaintiffs because consent issues were so individualized that the plaintiffs could not satisfy the predominance requirement. Trenz v. On-Line Administrators, Inc., No. 15-8356, 2020 WL 5823565 (C.D. Cal. Aug. 10, 2020). The case highlights that a defendant can defeat certification by showing that class members provided their numbers in different “transactional contexts,” which can give rise to individualized issues regarding the existence and scope of consent.

In 2008, Volkswagen Group of America, Inc. (“Volkswagen”) launched its Target and Retain Aftersales Customers (“TRAC”) program. Id. at *1. Through this program, it paid for over 900 dealerships across the country to retain Peak Performance Marketing Solutions, Inc. (“Peak”) to place service reminder calls to their customers. Id. A class action alleging the use of autodialers and automated voices to make calls without the plaintiff’s consent eventually followed. Id.

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