Category - "General"

Court Revisits Ascertainability, Reaffirms Class Certification Denial

Kate C. Goldberg contributed to writing this article.

In TCPA litigation, one of the most important goals of any defendant is to ensure that the class certification prerequisites are scrupulously applied and that no class is certified unless those requirements are clearly satisfied. A sprawling class action with potential aggregate statutory damages multiplied by hundreds or thousands of calls, texts or faxes takes what would be a modest individual case to a threat to the corporate defendant’s balance sheet. Thus, we are always eager to report on decisions examining the standards for class certification of TCPA claims.

One such recent case is Brian J. Lyngaas, DDS, PLLC v. IQVIA, Inc., which turned on the threshold issue of class ascertainability and whether transmission of a fax from a covered entity necessarily means that a class member received a fax. In Lyngaas, the plaintiff was a dental practice that claimed defendant IQVIA sent unsolicited fax advertisements inviting participation in a health care survey. Brian J. Lyngaas, D.D.S., P.L.L.C. v. IQVIA, Inc., No. 20-2370, 2025 WL 3565507 (E.D. Pa. Dec. 12, 2025). As the court noted, ascertainability requires 1) that the class be defined by reference to objective criteria and 2) that there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. Id. at *1-2.

In an earlier opinion in July 2024, the court found that the proposed class was not ascertainable because whether a fax had actually been received by a given individual was unclear, and thus there was no administratively feasible way to determine who was and wasn’t a member of the class. Brian J. Lyngaas, D.D.S., P.L.L.C. v. IQVIA, Inc., No. 20-2370, 2024 WL 3360653 (E.D. Pa. July 9, 2024). The plaintiff in Lyngaas had relied on an expert witness and third-party reports to demonstrate that faxes had been transmitted. But the court found these records lacked reliability after a ransomware attack compromised the data. Id. at *5-6. Additionally, the court found that some class members may have consented to the faxes, but determining consent would require individualized inquiries. Id. at *6-7. Because the only available data for identifying class members was unreliable and would require too much individualized inquiry to satisfy Rule 23’s administrative feasibility requirements, the court denied class certification. Id. at *8.

After the Third Circuit issued its decision in Steven A. Conner DPM, P.C. v. Fox Rehab. Services, P.C., which held that class membership depended on whether an individual’s fax number had a “successful” transmission on fax detail reports, and that actual receipt of the faxes was irrelevant for ascertainability, the Lyngaas court ordered the parties to address whether Conner affected its ruling. No. 23-1550, 2025 WL 289230, at *1 (3d Cir. Jan. 24, 2025); Brian J. Lyngaas, D.D.S., P.L.L.C. v. IQVIA, Inc., No. 20-2370, 2025 WL 3565507 (E.D. Pa. Dec. 12, 2025). Upon reviewing that supplemental briefing, the Lyngaas court reaffirmed its denial of class certification. Lyngaas, 2025 WL 3565507, at *3.

In its recent opinion, the Lyngaas court first noted that Conner does not have precedential value because unpublished Third Circuit opinions do not bind district courts. Id. at *2. Even under Conner’s analysis, however, the result would be the same because the plaintiff’s evidence did not provide a reliable or practical way to identify class members (defined as those to whom the faxes were sent), regardless of whether actual receipt is required. Id. at *2-3. The court reaffirmed that ascertainability remains a necessary threshold that requires easy identification of class members without guesswork or individualized fact-finding. Id. at *1-2.

Lyngaas reminds defendants of the importance of opposing class certification by focusing on the reliability and practicality of identification methods. Plaintiffs must provide clear and verifiable evidence and an easily administrated methodology to meet the threshold ascertainability standard.

Seventh Circuit Affirms Summary Judgment and Adopts Narrow Interpretation of “Telephone Solicitations”

The Seventh Circuit recently affirmed entry of summary judgment against a TCPA plaintiff and adopted the Eastern District of Wisconsin’s interpretation of the phrase “telephone solicitations.” Hulce v. Zipongo, Inc., — F. 4th —, 2025 WL 829603 (7th Cir. 2025). The Seventh Circuit held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” The Hulce plaintiff could not meet this standard because the services at issue were offered to him free of charge. The decision solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years.

James Hulce, a Wisconsin resident who received his health care through Medicaid, opted to enroll in Chorus Community Healthcare Plans (CCHP). CCHP, in turn, contracted with Defendant Zipongo, Inc. (d/b/a Foodsmart) to advertise nutritional consultations to its members. The consultations were offered to members at no cost. Hulce alleged that he received approximately twenty calls and text messages from Foodsmart despite his registration on the national do-not-call list and his requests for further communications to cease.

The central issue at summary judgment was whether the word “encouraging” as used in the TCPA’s definition of “telephone solicitation” (47 U.S.C. § 227(a)(4)) means to “persuade” or “urge,” as Foodsmart argued, or merely to make a purchase “more likely to happen.”

Ultimately, the Seventh Circuit held that one “cannot separate the encouragement element from the purchasing element.” The court reasoned that “[a] straightforward conclusion flows from this interpretation.” Specifically, the court held that “Foodsmart’s calls [did] not fall within the definition of ‘telephone solicitation’ because Foodsmart did not initiate them with the purpose of persuading or urging anyone to pay for its services.” The court held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” Although “Foodsmart’s purpose was to encourage Hulce to use its services, its purpose could not have been to encourage Hulce to pay for services that were free to him.” Therefore, the Seventh Circuit affirmed the district court’s order granting summary judgment against Hulce.

This ruling is the first of its kind from a U.S. Court of Appeals, and it solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years. Despite the favorable outcome, the Seventh Circuit cautioned parties not to “overread” the “decision to create a sweeping loophole within the prohibition of telephone solicitations.” Businesses offering free goods or services now have another defense against frivolous TCPA claims but they should be sure to consult with counsel given the ever-changing landscape of TCPA law.

This Blog Goes to Eleven

Today marks ten years and counting of the FCC’s revised TCPA rules—and, not coincidentally, of this blog. Over the last decade, more than 50 contributors have shared more than 500 posts about the statute’s restrictions, the FCC’s rules and regulations, the states’ enactment of so-called “mini” TCPAs, and the many twists and turns in the seemingly endless stream of litigation—much of it concocted by a colorful cast of recurring characters—arising under all of them. We have enjoyed sharing our insights and meeting our readers, and we can’t wait to see what the next ten years will bring.

Sixth Circuit Rejects Strict Liability for Products Advertised via Fax, “Some Level of Knowledge” Required

The U.S. Court of Appeals for the Sixth Circuit recently re-affirmed its position that manufacturers of products advertised in unsolicited fax messages do not face strict liability under the TCPA’s junk-fax provision.  To face liability, the manufacturers must at least be aware that fax advertisements are being sent.

In Lyngaas v. Curaden AG, a dentist sued a Swiss toothbrush manufacturer, Curaden AG, and its American subsidiary, Curaden USA, for sending unsolicited fax advertisements for their toothbrushes.  992 F.3d 412, 417 (6th Cir. Mar. 24, 2021).  The district court concluded that Curaden AG could not be held liable for the faxes because Curaden USA had designed and broadcasted the faxes on its own, without parent authorization.  Id. at 423.  On appeal, the dentist argued that FCC regulation extended liability to any entity “whose goods or services are advertised or promoted” in a fax, regardless of knowledge.  Id. at 424 (quoting 47 C.F.R. § 64.1200(f)(10)).

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

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.

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Join Us This Week — The TCPA: The Year Behind and Year Ahead

Please join us for a lively roundup of recent developments and hot topics hosted by Faegre Drinker’s TCPA team. Our attorneys will convene government and industry professionals to offer insight and perspective on a variety of issues, including the definition of an autodialer, trends in defending and settling TCPA cases, and the regulatory implications of the election and pandemic, among other much-buzzed-about subjects. In addition to members of Faegre Drinker’s TCPA team, our three panels will feature these guest speakers:

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Businesses, Trade Associations, and Public Policy Groups Flood Supreme Court with Amicus Briefs Supporting Narrow Reading of ATDS Definition

Late last week, numerous trade associations and public policy institutions filed amicus briefs supporting the narrow interpretation of the ATDS definition for which Facebook and the United States had advocated in briefs filed the week before. The case, Facebook, Inc. v. Duguid, arises from an automated security-alert text message to an individual who had never consented to receive such messages. See Facebook Brief at 15. The amicus briefs seek to help the Supreme Court resolve the growing circuit split over what constitutes an ATDS.

The following amici (and others joining with them) filed briefs in support of Facebook: Lyft, Quicken Loans, Home Depot, Salesforce.com, Aetna, Midland Credit Management, Credit Union National Association, Portfolio Recovery Associates, the Retail Litigation Center, the Life Insurance Direct Marketing Association, the Washington Legal Foundation, the Professional Association for Customer Engagement, and the U.S. Chamber of Commerce. The briefs (and previous filings in the case) can be found here.

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Parroting the Elements of the Statute—Without Pleading Any Substantive Facts—Isn’t Good Enough Under Rule 8 for the District of Connecticut

The United States District Court for the District of Connecticut recently granted a Defendant’s motion to dismiss Plaintiffs’ TCPA claims because Plaintiffs failed to adequately allege facts supporting an inference that Defendant (1) used an automatic telephone dialing system (“ATDS”) and (2) failed to maintain an internal do-not-call list. Sterling v. Securus Technologies, Inc., 2020 WL 2198095 (D. Conn. May 6, 2020). Plaintiffs originally sued multiple Defendants for negligent and willful violations of the TCPA. Id. at *1. Defendants removed the case to federal court and filed motions to dismiss the original Complaint. Id. Plaintiff amended, and Defendants again moved to dismiss. Id. The Court dismissed all claims against Defendants. Id. The Court then granted Plaintiffs’ motion for leave to file a Second Amended Complaint. Id. at *2. Plaintiffs’ Second Amended Complaint only named Defendant Securus, and Defendant again moved to dismiss. Id.

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Million-Dollar Settlement of Billion-Dollar Claim Found Reasonable in Light of Due Process Problems Posed By Disproportionate Damages

Another court has observed that a billion-dollar aggregate liability under the TCPA likely would violate due process, adopting the Eighth Circuit’s reasoning that such a “shockingly large amount” of statutory damages would be “so severe and oppressive as to be wholly disproportionate[] to the offense and obviously unreasonable.”

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Pending TCPA Petitions

The FCC’s TCPA dockets can be among the agency’s most active, with intermittent waves of petitions filed, followed by releases of public notices seeking comments on petitions for declaratory rulings or clarifications of FCC rules. It can be difficult to track down TCPA items in the FCC’s Electronic Comment Filing System. But fear not: the Drinker Biddle TCPA team has put together this tracker chart to help our readers locate pending TCPA petitions and associated public notices. The chart is organized by issue and contains brief summaries of the requests made by petitioners. It does not include petitions for reconsideration of the FCC’s July 2015 omnibus order.

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