Recently, the Northern District of Illinois dismissed a TCPA putative class action without prejudice, finding that faxes inviting recipients to attend free continuing education veterinary seminars did not constitute advertisements on their face because they did not promote products or services and they were not sufficiently alleged to be a pretext for an underlying commercial purpose. Ambassador Animal Hosp., Ltd. v. Elanco Animal Health, Inc., No. 20-cv-2886, 2021 WL 633358 (N.D. Ill. Feb. 18, 2021).
Recently, the Eastern District of Missouri added to the split among courts deciding whether they can hear TCPA claims alleging robocall violations that occurred when the now-invalidated government debt exception was part of the statute. As we have previously reported on here, some district courts have joined Creasy v. Charter Communications, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020), in holding that subject matter jurisdiction is lacking in such cases, but a growing number—now including the Eastern District of Missouri—have disagreed. Miles v. Medicredit, Inc., No. 4:20-cv-001186, 2021 WL 872678 (E.D. Mo. Mar. 9, 2021).
The scenario at issue in this case is a familiar one. Defendant Medicredit is a medical debt collector. Plaintiff Miles contended that Medicredit violated the TCPA’s prohibition on making calls using an ATDS or an artificial or prerecorded voice by placing six such calls to his cell phone, without his consent, in January and February 2018. Not so, Medicredit responded, for the prohibition at issue, 47 U.S.C. § 227(b)(1)(A)(iii), was unconstitutional at the time Medicredit allegedly made the calls to Miles because the provision contained an exception, for calls to collect government debts, that the Supreme Court later invalidated as a content-based restriction on speech that violated the First Amendment. Thus, Medicredit argued in its motion to dismiss that the court, having no statutory basis to enforce the alleged violations, lacked subject matter jurisdiction to hear the suit.
As we have reported on here, here, here, and here, a growing number of district courts are issuing opinions addressing whether they have subject matter jurisdiction over TCPA claims alleging robocall violations that occurred when the government debt exception invalidated by Barr v. APPC, 140 S. Ct. 2335 (2020), was part of the statute. The Eastern District of California recently added to this line of cases, joining courts that have held that “the TCPA remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020.” See Stoutt v Travis Credit Union, No. 2:20-cv-01280, 2021 WL 99636, at *3 (E.D. Cal. Jan. 12, 2021).
The Eastern District of Pennsylvania recently dismissed a RICO lawsuit against a serial TCPA plaintiff, finding that, while the conduct alleged “might be unseemly,” it did not amount to racketeering activity. Jacovetti Law, P.C. v. Shelton, No. 2:20-cv-00163, 2020 WL 5211034, at *3 (E.D. Pa. Sept. 1, 2020).
Recently, the Middle District of Florida denied a motion for class certification, finding that the plaintiff had not sufficiently shown that the putative classes were ascertainable. Sliwa v. Bright House Networks, LLC & Advanced Telesolutions, Inc., No. 16-0235, 2019 WL 4744938 (M.D. Fla. Sept. 27, 2019).
Recently, the Eastern District of Michigan granted a motion for summary judgment in Gary v. Trueblue, Inc., No. 17-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018), after finding that a plaintiff failed to show that defendants’ telephone dialing system qualified as an ATDS under the statute’s plain language. This decision adds to the growing list of cases applying the plain language of the statute in the wake of ACA International. Continue reading
The Third Circuit recently affirmed the Eastern District of Pennsylvania’s finding that Yahoo!’s email-to-text alert system does not qualify as an automatic telephone dialing system (“ATDS”). (Our previous discussions of this case are here, here, and here.) Following the District of Columbia Circuit’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Third Circuit held that the system at issue must be analyzed using a “present capacity” standard and that the plaintiff had failed to present any evidence to show that, under this standard, the system could function as an autodialer. Continue reading
The District of New Jersey recently dismissed a class action TCPA complaint, finding that the plaintiff did not use a reasonable method of revoking consent when she failed to follow the defendant’s straightforward directions for providing such revocation. Rando v. Edible Arrangements Int’l, LLC, No. 17-0701, 2018 U.S. Dist. LEXIS 51201 (D.N.J. Mar. 28, 2018). In doing so, the court’s decision further confirmed the position within the District that the totality of the circumstances dictates whether a method of revocation of consent is reasonable and thus valid in TCPA cases. Continue reading