Last week, the District of Nevada contributed to a growing consensus among Ninth Circuit district courts that TCPA liability generally does not extend to companies that produce equipment used to place unlawful calls—such as messaging platforms and contact lists— because the entities that use such equipment usually do so on behalf of another company, and not the equipment provider.
District Court (Again) Holds Text Messages Insufficient to Confer Article III Standing
The Southern District of Florida recently dismissed a TCPA claim sua sponte for lack of subject matter jurisdiction, finding that the plaintiff had not alleged a concrete injury-in-fact. See Perez v. Golden Trust Insurance, Inc., 470 F. Supp. 3d 1327 (S.D. Fla. 2020).
Perez alleged that Golden Trust had violated the TCPA when, without his consent, it used an ATDS to send two telemarketing text messages to his cell phone. Golden Trust argued that the complaint should be dismissed because Perez did not properly allege the use of an ATDS.
Timing Is Everything in Eleventh Circuit’s Renewed Consent Case
The Eleventh Circuit recently affirmed the entry of summary judgment in favor of a student loan servicer and its affiliate, finding that their nearly 2,000 calls did not violate the TCPA because the plaintiff had renewed his consent by submitting an online demographic form. See Lucoff v. Navient Sols., LLC, No. 19-13482, 2020 WL 7090315 (11th Cir. Dec. 4, 2020).
The history of this case is somewhat winding. In 2010, the plaintiff was part of a class action against one of the defendants. Id. at *1. As part of the settlement terms, class members who did not submit revocation request forms were deemed to have provided prior express consent to receive calls regarding their student loans. Id. The plaintiff did not submit a revocation request. Id.
Continue reading “Timing Is Everything in Eleventh Circuit’s Renewed Consent Case”
What’s in a Name? Not a Certified Class
The Tenth Circuit kicked off the holiday season with a little TCPA humor. In Rivera v. Exeter Finance Corp., No. 20-1031, 2020 WL 6844032, at *1 (10th Cir. Nov. 23, 2020), the Tenth Circuit Court of Appeals was confronted with a case about “[p]esky robocalls: we all get them, we all hate them, and yet we cannot seem to get rid of them, no matter how many times we unsubscribe, hang up, or share choice words with the machine on the other end of the line.” The plaintiff evidently “share[d] this sentiment” with Justices Tymkovich, Briscoe, and Murphy, but also figured that he was “not the only one suffering from [defendant]’s vexatious robocalls” and brought a putative class action. Id.
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.
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:
Continue reading “Join Us This Week — The TCPA: The Year Behind and Year Ahead”
Supreme Court to Hold Oral Argument via Teleconference in Facebook v. Duguid
Tomorrow morning, the Supreme Court will hold oral argument via teleconference in Facebook v. Duguid, which concerns the proper interpretation of the TCPA’s definition of an “automatic telephone dialing system.” The question presented is “whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” You can listen to the argument live at various media outlets and later on the Court’s website.
Facebook and U.S. Government Submit Final Briefs in Supreme Court ATDS Fight, Oral Argument to Follow
This week, Facebook and the United States government filed responses to Plaintiff’s brief in Facebook, Inc. v. Duguid, the Supreme Court case that promises to resolve the circuit-splitting uncertainty over what does and does not qualify as an ATDS under the TCPA. The Plaintiff’s brief—which we covered here—argues that the adverbial phrase “using a random or sequential number generator” modifies the verb “to produce” but not the verb “to store” in the statute’s definition of an ATDS. See 47 U.S.C. § 227(a)(1). If the TCPA is interpreted in this fashion, liability could follow from using any device that can store and automatically dial a number—including, among other things, virtually every smartphone in use today.
District Court Decertifies TCPA Class Due to Consent Issues
The Central District of California recently decertified a class of TCPA plaintiffs because consent issues were so individualized that the plaintiffs could not satisfy the predominance requirement. Trenz v. On-Line Administrators, Inc., No. 15-8356, 2020 WL 5823565 (C.D. Cal. Aug. 10, 2020). The case highlights that a defendant can defeat certification by showing that class members provided their numbers in different “transactional contexts,” which can give rise to individualized issues regarding the existence and scope of consent.
In 2008, Volkswagen Group of America, Inc. (“Volkswagen”) launched its Target and Retain Aftersales Customers (“TRAC”) program. Id. at *1. Through this program, it paid for over 900 dealerships across the country to retain Peak Performance Marketing Solutions, Inc. (“Peak”) to place service reminder calls to their customers. Id. A class action alleging the use of autodialers and automated voices to make calls without the plaintiff’s consent eventually followed. Id.
Continue reading “District Court Decertifies TCPA Class Due to Consent Issues”
Despite Absence of Settlement, Unclaimed Funds To Be Distributed To Government Or Charity Rather Than Revert To Dish Network
Last week, the federal judge presiding over a class action against Dish Network (“Dish”) denied a request for reversion of $11 million in unclaimed funds, deciding instead that the funds—which were the product of a trial rather than a settlement—should escheat to the government or be donated to a charity. See Krakauer v. Dish Network, LLC, No. 14-0333 (M.D.N.C. Oct. 27, 2020).
In denying Dish’s request for reversion, the court explained that “[t]he TCPA is a deterrence statute, and reversion does not support th[at] statutory goal.” Id. at 10. It then cited cases for the proposition that unclaimed funds should not revert to a defendant if doing so would undermine the deterrence function of damages. Id. at 5 (citing In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21, 32-33 (1st Cir. 2012); Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990)).