Author Archives: Vijayasri Aryama

Florida Court Finds One Unwanted Text Message Does Not Cause Concrete Harm, Remands FTSA Case to State Court

March 15, 2023
and
Actual Harm, Jurisdiction, Standing

In Weitz v. Genting New World LLC, No. 1:22-cv-23209-BLOOM, 2023 WL 2328365, at *1 (S.D. Fla. Mar. 2, 2023), Plaintiff Brandon Weitz brought suit against Defendant Genting New World LLC on behalf of himself and a putative class in Florida state court, alleging violations of the Florida Telephone Solicitation Act (“FTSA”).  Defendant removed the case to the United States District Court for the Southern District of Florida.  Id.

Sometimes dubbed Florida’s “Mini-TCPA,” the FTSA regulates telemarketing activities within Florida.  The law was designed to protect consumers from unwanted telemarketing calls and ensure that telemarketers comply with certain rules and regulations.  The FTSA prohibits certain acts, such as calling individuals who are on the National Do Not Call Registry, using automatic dialing systems to call emergency phone numbers, and using pre-recorded messages without prior consent.

Continue reading   »

Business or Residential? Ambiguity Surrounding Number on Do Not Call Registry Can Defeat Class Certification

May 3, 2021
and
Class Certification, Do-Not-Call Rules, FCC, Standing

In an interesting decision from the District Court of Oregon, United States Magistrate Judge Youlee Yim You recommended granting a motion to deny class certification where uncertainty about the appropriate classification of a cell phone number’s use was enough to make the plaintiff an inadequate class representative with atypical claims.  Mattson v. New Penn Fin., LLC, No. 3:18-cv-00990, 2021 WL 1406875 (D. Or. Mar. 8, 2021).

In Mattson, the plaintiff filed a TCPA class action, claiming the defendant, New Penn Financial, LLC, called his cell phone while it was registered on the national Do Not Call Registry in violation of 47 C.F.R. § 64.1200(c).  Id. at *1.  As readers of this blog will note, 47 C.F.R. § 64.1200(c)(2) prohibits telephone solicitations made to residential telephone subscribers who are registered on the Do Not Call Registry.  New Penn sought denial of class certification, arguing the uncertainty of Plaintiff’s standing made his claims atypical, rendering him an inadequate class representative.  Id.  In considering the motion, the Court identified an issue unique to the plaintiff—whether the cell phone number at issue was properly considered a residential or business telephone number.  Id. at *5.

Continue reading   »

4th Circuit Declines to Consider Dish Network’s “Premature” Appeal of District Court’s $11 Million Final Disbursement Order

December 9, 2020
and
Reversion, Settlements

As readers of this blog may recall, the Middle District of North Carolina recently denied Dish Network’s request for reversion of $11 million in unclaimed funds from the jury-awarded damages in a TCPA class action trial.  See Krakauer v. Dish Network, LLC, No. 14-0333 (M.D.N.C. Oct. 27, 2020). Noting that the TCPA is a deterrence statute, the District Court held that allowing unclaimed funds to revert to the defendant would undermine the function of the damage award, and it determined that such funds should either escheat to the government or be donated to an appropriate charity whose work is related to the objectives of the TCPA. But the District Court did not decide the ultimate recipient of the unclaimed funds, appointing a special master to identify and evaluate potential cy pres recipients and make recommendations to the court.

Continue reading   »

Court Finds that Debt Collection Makes Use Of Random or Sequential Number Generation Implausible

August 28, 2020
and
Automatic Telephone Dialing System, Debt Collection, Rule 8

In a victory for debt collectors, the Central District of Illinois recently found that a plaintiff’s bare-bones allegations regarding use of an ATDS were particularly implausible because “the business of the defendant is such that it would not need a machine with random or sequential number generation capacities.” Mosley v. Gen. Revenue Corp., No. 20-01012, 2020 WL 4060767, at *3 (C.D. Ill. July 20, 2020).

In Mosley v. General Revenue Corp., the plaintiff alleged that a debt collection company used an ATDS and prerecorded messages to call her cellular telephone without her consent. Id. at *1. She claimed the calls concerned debts that were not hers, and some calls started with short pauses and “dead air.” Id.

Continue reading   »

District of New Jersey Adopts Narrow ATDS Definition as Circuit Split Grows; Supreme Court Clarification Required

May 7, 2020
and
Automatic Telephone Dialing System, Supreme Court

As readers of this blog know, a robust Circuit split has developed regarding the meaning of an ATDS. The Second and Ninth Circuits have taken one approach, while the Third, Seventh, and Eleventh Circuits have taken another. While we await Supreme Court guidance, lower courts continue to grapple with the ATDS issue. In Eisenband v. Pine Belt Automotive, Inc., No. 17-8549 (FLW) (LHG), 2020 WL 1486045 (D.N.J. Mar. 27, 2020), the District of New Jersey analyzed the definition of an ATDS and concluded that equipment that dials numbers from a manually prepared list  does not constitute an ATDS.

Continue reading   »

Court Denies Atypical Plaintiff’s Motion to Certify Unascertainable Fail-Safe Class

November 6, 2019
and
Ascertainability, Class Certification

The Middle District of Florida has denied a motion for class certification, finding the proposed class definition would have created a fail-safe class, the class members were not ascertainable, and the plaintiff’s claims were not typical of the class. Fennell v. Navient Solutions, LLC, No. 17-2083, 2019 WL 3854815, at *2 (M.D. Fla. 2019)

The plaintiff in Fennell alleged that, despite her revocation of consent, Navient had used an ATDS to repeatedly call her to collect a debt. Id. at *1. In response, Navient argued that, although it had used predictive dialers to call other people, it had not used that equipment to call the plaintiff because her delinquent loans had been assigned to Navient’s “Cures Unit,” which only made calls through manual dialing. Id. at *1, *2.

Continue reading   »

Court Holds That Text-Messaging System Must Be Able to Randomly or Sequentially Generate Numbers to Qualify as an ATDS

October 3, 2019
and
Automatic Telephone Dialing System, Summary Judgment

The Northern District of Illinois recently entered summary judgment against a group of plaintiffs because it found the system at issue was not an ATDS.

In Smith v. Premier Dermatology, No. 17-3712, 2019 WL 4261245 (N.D. Ill. Sept. 9, 2019), the Defendants used a proprietary “eRelevance” system to send medical marketing communications by text message to their clients’ customers or patients. Defendant eRelevance Corporation would have its clients provide their current and prospective customer contact information, which would be uploaded into the eRelevance system. Based on client-selected criteria, the system would create lists of contacts, and once eRelevance employees built a text-message marketing campaign, they could push a button to have the system automatically send text messages to each contact on the list.

Continue reading   »

Defendant Debunks Plaintiffs’ Reliance On FCC Order That Never Became Effective

March 20, 2019

Consent, Debt Collection, FCC, Government Calls

A pair of new cases, one from Alabama and the other from Florida, has doubled down on the conclusion that plaintiffs cannot rely on the Report and Order adopted by the FCC on August 11, 2016 (the “August 2016 Order”) in asserting their TCPA claims, especially when the subject of the calls is debt owed to or guaranteed by the United States government.

Continue reading   »