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.
On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.
The Seventh Circuit recently issued an opinion with significant implications for defendants evaluating the prospects for due process challenges to awards of statutory damages under the TCPA, as well as defendants facing claims of agency liability for the acts of their vendors or contractors. In an opinion by Judge Easterbrook, the Seventh Circuit ordered the District Court to reexamine a “whopping” $280 million penalty against DISH Network, LLC (“DISH”) for violations of the TCPA, the Telemarketing Sales Rule, 16 C.F.R. § 310 (the “Rule”), and related state laws. U.S. v. DISH Network, LLC, 2020 WL 141844, at *8 (7th Cir. Mar. 26, 2020). Although the Seventh Circuit suggested in dicta that the damages award was constitutionally acceptable, it held that the District Court erred because it only considered DISH’s “ability to pay” when calculating the award. Id. The court stated that the analysis should “start from harm rather than wealth, then add an appropriate multiplier.” Id.
The Eleventh Circuit last week issued a common-sense ruling vacating class certification in a TCPA case—an area of the law where common sense does not always prevail. In Cordoba v. DIRECTV, LLC, No. 19-12077 (11th Cir. Nov. 15, 2019), the named plaintiff claimed that DIRECTV violated the TCPA when Telecel, the company it had contracted with to provide telemarketing services, failed to maintain an internal “do-not-call list” of individuals who had requested not to receive telemarketing calls on behalf of DIRECTV. Cordoba sought to represent a class of all persons who had received more than one telemarketing call during the period of time that Telecel had failed to maintain a do-not-call list for DIRECTV. The district court certified the class, failing to consider that the class as defined would include many members—mostly members, potentially—who had never asked to be placed on the do-not-call list. Having never made this request, the Eleventh Circuit said, those members lacked standing because their injuries were not traceable to Telecel’s alleged failure to maintain the list. Furthermore, because distributing an award would require the district court to confirm whether a class member had a traceable injury, individualized inquiries predominated over common questions. The district court’s failure to consider these individualized questions of standing and predominance doomed its certification order.
TCPA Blog senior editor Michael Daly was quoted in a Law360 article regarding the Fourth Circuit’s ruling in Krakauer v. Dish Network, which affirmed the certification of Do-Not-Call claims and the award of $61 million in statutory damages.
Mike and others predicted that plaintiffs will try to invoke the Fourth Circuit’s decision in other kinds of TCPA cases. Mike explained that “[p]laintiffs will no doubt take out of context the Fourth Circuit’s statement that ‘TCPA claims’ are ‘conducive’ to class treatment.” “But that would be painting with too broad a brush,” he explained, because “other species of TCPA claims . . . necessarily turn on inherently individualized questions of consent and revocation of consent, among other things.”
The Fourth Circuit’s decision also serves as an important reminder that plaintiffs may try to hold businesses liable for calls that their vendors make. Mike explained that “the Krakauer decision is—as if anyone still needed one—a wake-up call.” He cautioned that business must be “hypervigilant about what they and their vendors are doing. They should not simply rely on contractual provisions disclaiming agency and requiring compliance and indemnification.”
Read “4th Circuit Ruling Eases Class Certification Path in Telemarketing Rows.”
Businesses may dial large volumes of numbers daily for a variety of legitimate purposes. These calls now appear to have become swept up and conflated with illegal robocalls, with a number of undesirable consequences. Certainly policy makers at the FCC, in reacting to understandable concerns about fraudulent and illegal calling, have been introducing more and more opportunities for voice service and app providers to apply non-transparent, subjective standards to block calls, and further muddy the water for business callers. Continue reading
The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.
Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below. Continue reading
On December 22, 2017, the FTC issued its Biennial Report to Congress on the National Do-Not-Call Registry, which lists the telephone numbers at which individuals have requested that they not be called by telemarketers. The report provides an overview of the Registry’s operations for 2016 and 2017 and guidance for continued compliance with the Registry in 2018 and beyond. The key takeaways from the Report are discussed below. Continue reading