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.
William Wright
Articles by William Wright:
Fourth Circuit Broadens TCPA’s Reach Over ‘Unsolicited Advertisements’
The Fourth Circuit Court of Appeals has recently handed down a decision that impacts the TCPA landscape. In Family Health Physical Medicine, LLC v. Pulse8, LLC, the court reversed a lower court’s dismissal of a TCPA claim, adopting a broader interpretation of what constitutes an “unsolicited advertisement” under the Act. This ruling has important implications for businesses operating in the Fourth Circuit and could influence TCPA litigation strategies nationwide.
The case revolved around a fax sent by Pulse8, a health care analytics company, inviting recipients to attend a free webinar on behavioral health coding. Family Health Physical Medicine alleged that this fax violated the TCPA as an unsolicited advertisement, despite not explicitly offering any goods or services for sale. In a decision that expands the scope of TCPA liability, the Fourth Circuit held that the plaintiff plausibly alleged the fax was an advertisement under two theories. Family Health Physical Med., LLC v. Pulse8, LLC, No. 22-1393, *4-*11 (4th Cir. 2024).
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TCPA Boundaries Drawn: Marketing Text Messages to Known Telephone Numbers Permitted
In Marina Soliman v. Subway Franchisee Advertising Fund Trust, Ltd. (101 F.4th 176), the Second Circuit addressed critical questions regarding the definition of an “automatic telephone dialing system” (ATDS) and whether text messages fall under the TCPA’s prohibition against the use of an “artificial or prerecorded voice.”
Marina Soliman brought a putative class action against Subway, alleging that the company had violated the TCPA by sending her automated marketing text messages after she had opted out of receiving them. The United States District Court for the District of Connecticut dismissed her claims, concluding that the TCPA did not apply to Subway’s actions. Soliman appealed this decision, but the Second Circuit ultimately affirmed the district court’s ruling.
Maryland District Court Opinion Explores Complexities of TCPA Consent and Revocation
In the recent opinion of Smith v. ExamWorks, LLC, No. 21-2746, 2024 WL 622102 (D. Md. 2024), the District of Maryland analyzed the nuances of consent and revocation under the TCPA.
At the heart of the dispute was whether Plaintiff Smith had expressly consented to receive automated calls, and, if so, whether he had effectively revoked this consent. ExamWorks, seeking summary judgment, argued that consent obtained by Plaintiff’s insurer extended to it, as ExamWorks was conducting an independent medical examination (IME) related to Smith’s insurance claim. The company posited that since Smith had allegedly provided his cellphone number during the claim process, this constituted prior express consent, negating any TCPA violation.
Eastern District of Missouri Finds Standing Issue with TCPA Cases When Plaintiffs do Not Request to be on Internal Do-Not-Call Lists
The United States District Court for the Eastern District of Missouri recently issued an opinion with significant implications for plaintiffs’ standing to allege violations of the TCPA under Article III. In the case of Thompson v. Genesco, Inc. (2024 WL 81187), the court addressed the critical question of whether the plaintiff had Article III standing to bring his TCPA claim.
Dennis Thompson filed a lawsuit against Genesco, Inc. in Missouri state court, alleging that Genesco had unlawfully sent him unwanted marketing text messages in violation of the TCPA and its accompanying regulations. Genesco removed the case to federal court, and the court, sua sponte, ordered supplemental briefing to address whether Thompson had Article III standing to maintain his lawsuit.
District of Oregon Finds that Ninth Circuit’s Chennette Presumption Does Not Materially Impact Class Certification Criteria
The United States District Court for the District of Oregon recently issued a significant opinion regarding the legal framework for certifying Do-Not-Call claims. See Mattson v. New Penn Financial LLC, 2023 WL 8452659 (D. Or. 2023).
The genesis of the case was the alleged receipt of unsolicited calls to a cellphone number listed on the National Do-Not-Call Registry. Central to the lawsuit was the plaintiff’s motion to certify a class of individuals who had allegedly received similar calls from the defendant. Id.
Another Day, Another ATDS Suit Dismissed in E.D. Pa.
Plaintiff Andrew Perrong is no stranger to the Eastern District of Pennsylvania, and on September 18, 2023, yet another of Perrong’s suits was partially dismissed on ATDS grounds. Perrong v. Bradford, et al., No. 2:23-cv-00510, 2023 WL 6119281 (E.D. Pa. Sept. 18, 2023). You can read our prior coverage of Perrong decisions here and here.
In this instance, Perrong filed a TCPA action against Pennsylvania House of Representatives member Matthew Bradford; he later filed an Amended Complaint adding Cleo Communications, LLC, which placed the calls on behalf of Representative Bradford. Perrong alleged that in 2019 and 2020, he received five phone calls, four of which were not answered or were answered to dead air. A fifth phone call included a recording of Representative Bradford, inviting Perrong to participate in a virtual information session on opportunities to connect Pennsylvanians to healthcare coverage. Perrong asserted three TCPA claims against Representative Bradford and Cleo Communications: the placing of a prerecorded message, use of an ATDS, and the placing of a telemarketing call.
Continue reading “Another Day, Another ATDS Suit Dismissed in E.D. Pa.”
Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes
The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if the fax also refers to a related offer to sell another product or service. 2023 WL 509070, *6 (7th Cir. 2023).
Smith is a decision driven by its particular facts. The plaintiff, a chiropractor1, received two unsolicited faxes from First Hospital Laboratories (FHL), a company that provides health monitoring and screening services through a network of medical providers who act as independent contractors. Id. at *1. The faxes invited plaintiff to join FHL’s network of preferred medical providers. Id. The faxes also stated that FHL would pay plaintiff a fixed rate for each service he rendered to one of FHL’s clients. Id. FHL would refer clients to the plaintiff only if he agreed to allow FHL to invoice the clients directly for the services and neither attempted to obtain more than the fixed rate nor disclosed to the clients the fixed rates that FHL was paying the plaintiff for the services. Id. at *4. The clear implication was that FHL would profit by charging the clients more than the fixed rate it was paying the plaintiff to render the services. Id.
E.D. Pa. Dismisses Serial Plaintiff’s TCPA Case on ATDS Grounds
On July 18, 2023, the United States District Court for the Eastern District of Pennsylvania dismissed a TCPA claim filed by serial Plaintiff, Andrew Perrong. Perrong v. Montgomery Cnty. Democratic Comm., No. 22-4475, 2023 WL 4600423 (E.D. Pa. July 18, 2023). You can read our prior coverage of Perrong decisions here and here.
The present case centers around three phone calls Perrong received from the Montgomery County Democratic Committee and its associates. Perrong claimed that Defendants violated the TCPA by using an ATDS to contact him. The Defendants moved to dismiss the case, arguing that Perrong’s complaint failed to state a claim because the device at issue randomly or sequentially dialed phone numbers from a preexisting list (such as a list of registered voters), rather than randomly producing phone numbers itself, and therefore did not qualify as an automatic telephone dialing system.
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Florida Court Finds One Unwanted Text Message Does Not Cause Concrete Harm, Remands FTSA Case to State Court
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.