On July 12, 2022, Representatives Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced H.R. 8334 in the U.S. House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”
The TCPA presently defines “automatic telephone dialing system” (or “ATDS”) as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator . . . to dial such numbers.” The law generally prohibits any person from making nonconsensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.
The retroactivity of the Supreme Court’s decision in Barr v. AAPC is back before the Supreme Court to decide—if, that is, it grants the petition for certiorari that was just filed by the Defendant in Lindenbaum v. Realgy.
Some background may help. As our regular readers know, Barr v. AAPC held that the TCPA’s exemption for federal debt-collection calls—and only federal debt-collection calls—was a content-based regulation of speech that violated the First Amendment. But rather than strike down all of the statute’s restrictions on automated equipment, the Court saved them by severing that one exemption from the statute.
A court in the Northern District of California recently granted a defense motion for summary judgment, finding that the defendants were not vicariously liable for a subcontractor’s supposed TCPA violations because the record showed that they had neither given the subcontractor authority to violate the TCPA nor ratified its acts.
In Schick v. Caliber Home Loans, Inc., defendant Caliber hired defendant NextLevel to generate leads for its home loan refinancing business. No. 20-CV-00617-VC, 2021 WL 4166906, at *1 (N.D. Cal. Sept. 14, 2021). Their contract mandated that NextLevel “perform or provide” its services “in full compliance with … all applicable federal, state, and local laws, regulations and ordinances.” Id. The contract further required that NextLevel “not allow any subcontractor … to perform or provide” services “without … prior written consent.” Id. Without Caliber’s consent, in violation of the subcontractor provision, NextLevel hired subcontractor Driving Force to provide leads. Id. After allegedly receiving two calls on a number on the national “Do Not Call” Registry, Plaintiff filed suit and sought to hold the defendants vicariously liable. Id.
On August 10, 2021, a divided Ninth Circuit panel vacated a trial court’s certification of two nationwide classes, finding that the defendant had not waived its personal jurisdiction objection to class certification by not raising the issue at the pleading stage. See Moser v. Benefytt, Inc., No. 19-56224, 2021 WL 3504041 (9th Cir. Aug. 10, 2021).
This case arose as a putative nationwide class action filed by Kenneth Moser in federal court in California against Benefytt Technologies, Inc., formerly known as Health Insurance Innovations, Inc. (HII), alleging that HII was responsible for unwanted sales calls that violated the TCPA. Moser was a resident of California, whereas HII was incorporated in Delaware and had a principal place of business in Florida.
The Seventh Circuit has reversed a decision from last year by the U.S. District Court for the Northern District of Illinois dismissing a TCPA claim for lack of personal jurisdiction over an alleged principal of the caller. That decision, which we covered here, concluded that the plaintiff had not established an agency relationship between defendant Health Insurance Innovations, Inc. (“HII”) and the unnamed “lead generators” that had made the allegedly unsolicited calls. Bilek v. Fed. Ins. Co., No. 19-8389, 2020 WL 3960445, at *5 (N.D. Ill. July 13, 2020). As a result, the Northern District held that it lacked specific personal jurisdiction over HII, which had no connection to the forum state beyond its alleged relationship with the telemarketers that called the plaintiff in Illinois. Id.
On appeal, the plaintiff argued that he had plausibly alleged an agency relationship and that the district court should therefore have imputed the caller’s conduct to HII when assessing whether it could exercise specific personal jurisdiction over the latter. Bilek v. Fed. Ins. Co., No. 20-2504, 2021 WL 3503132, at *6 (7th Cir. Aug. 10, 2021).
TCPA Blog’s Michael Daly will be participating in a webinar titled “Supreme Court’s Facebook Decision Upends TCPA Litigation Landscape.” This webinar on Thursday, April 22, 2021, will delve into the Supreme Court’s decision in Facebook v. Duguid, which resolved a split among the lower courts over how to interpret the TCPA’s definition of an “automatic telephone dialing system.” The panelists from the Consumer Litigation Committee of the American Bar Association’s Litigation Section will analyze the decision and discuss the future of TCPA litigation.
For more information and to register, please click here.
The Northern District of Texas handed down a decision exploring the jurisdictional limitations on TCPA plaintiffs’ ability to hale out-of-state defendants into a plaintiff’s local federal court.
The case, Horton v. Sunpath, Ltd., involved a Texas resident (Lucas Horton) who launched a TCPA suit against a Massachusetts-based corporation (Sunpath). Horton alleged that Sunpath’s agent, Northcoast Warranty Services, placed several calls to his cell phone using an automatic telephone dialing system and pre-recorded messages, despite the number’s listing on the National Do-Not Call Registry. No. 3:20-cv-1884-B-BH, 2021 WL 982344, at *1 (N.D. Tex. Feb. 16, 2021). On the calls, Horton stated, Northcoast encouraged him to purchase an auto service policy administered by Sunpath. Id. The calls continued for about three months until Horton purchased a policy from Sunpath in May 2020. Id. Horton filed suit against Sunpath about a month later in the Northern District of Texas. Id.
TCPA Blog’s Mike Daly authored an article for the American Bar Association’s Consumer Litigation Committee titled, “Senescence and Sensibility: Will the Supreme Court Mothball the TCPA?” that discusses developments around TCPA’s autodialer restriction.The article addresses the dispute between courts over what qualifies as an ATDS and the impact the dispute has had on businesses trying to comply with the statue when its scope varies between circuit courts.The article also highlights how what constitutes an ATDS may finally be resolved in Facebook v. Duguid and what the case’s decision could mean for pending cases.
The full article is available for American Bar Association’s Consumer Litigation Committee subscribers.
The District of Arizona recently dismissed Winters v. Grand Caribbean Cruises, Inc., No. 20-0168, 2021 WL 511217 (D. Ariz. Feb. 11, 2021), for lack of personal jurisdiction, finding that the plaintiffs had failed to establish that the caller’s contact with Arizona could be imputed to Grand Caribbean.
The plaintiffs alleged that Grand Caribbean violated the TCPA by using a prerecorded voice to initiate calls to numbers on the Do-Not-Call Registry. Grand Caribbean moved to dismiss for lack of personal jurisdiction, among other things.