Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.

Facts

In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).

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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.

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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.

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Recent Rulings Highlight the Importance of Challenging Imprecise TCPA Class Definitions

A recent ruling in Sowders v. Scratch Financial, Inc., No. 23-0056, 2023 WL 7525900 (S.D. Ohio Nov. 14, 2023), emphasizes the need to challenge overbroad and unascertainable class definitions in TCPA suits.  In that case, the defendant’s motions to dismiss resulted in a ruling that effectively narrowed the plaintiff’s proposed class definition.

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Ninth Circuit Clarifies Standards for Certifying a Class and Determining Treble Damages Under TCPA

Last week, the Ninth Circuit in True Health Chiropractic, Inc. v. McKesson Corp. (True Health II), No. 22-15710 (9th Cir. Oct. 25, 2023), affirmed the Northern District of California’s earlier ruling in True Health Chiropractic Inc. v. McKesson Corp., 13-cv-02219 (N.D. Cal. Apr. 27, 2022), which clarified the standards for certifying classes under the TCPA and determining whether a violation of the TCPA is sufficiently “willful and knowing” to warrant treble damages.

In True Health, plaintiffs received 13 faxes from defendant advertising and offering rebates for medical billing software.  Plaintiffs attempted to certify a class and asked for treble damages, alleging that defendant “willfully and knowingly” violated the TCPA when it sent the faxes.  In response, defendant argued that plaintiffs had consented to receiving the faxes because they filled out optional registration forms giving their contact information and had authorized the transmission of “certain computer and software usage information” by signing an end user license agreement (“EULA”).  True Health, No. 22-15710 at 4.  Plaintiffs had filled out both documents when purchasing other products from defendant.

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Washington Federal Court Finds Sufficient Allegations of Prerecorded Calls But Dismisses Claims for Treble Damages and Injunctive Relief

Recently, a federal judge in the United States District Court for the Western District of Washington granted in part a motion to dismiss a TCPA claim in a putative class action. The Court found that although the plaintiff plausibly alleged that he received multiple calls using a prerecorded voice, he did not sufficiently allege facts to support his request for either treble damages or injunctive relief. Blair v. Assurance IQ LLC, No. 2:23-00016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023).

The plaintiff claimed that he received 12 unsolicited calls, one of which he answered, and three of which resulted in voicemails. He alleged that the latter four calls used a prerecorded voice “because of the tone, cadence, and timing of the speaker, which sounded unnaturally perfect,” and because all of the voicemails were “identical.” In its motion to dismiss, the defendant argued that the Court could not reasonably infer that the voice the plaintiff allegedly heard was either prerecorded or live because the plaintiff failed to specify “what about the tone, cadence, and timing” indicated that the call was prerecorded. The Court rejected this argument, however, finding that the allegation of an “unnaturally perfect” voice was enough at the pleadings stage to infer that it was artificial or prerecorded. The Court also held that although the plaintiff “could have expounded more” on how the voicemails were identical (e.g., the tone and cadence of the voice), the fact that the voicemails had “suspicious timing” (they were left at the exact same time on three separate days) and contained “generic content” (identical sales pitches) was enough to infer the use of an artificial or prerecorded voice.

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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.

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.

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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.

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Eleventh Circuit Expands on Drazen II, Holding that an Unwanted Text is Sufficient for FTSA Standing

In a per curiam unpublished opinion, the Eleventh Circuit recently held that a plaintiff had standing to assert claims under the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) for his receipt of five unsolicited telemarketing text messages. Muccio v. Global Motivation, Inc., No. 23-10081, 2023 WL 5499968 (11th Cir. Aug. 25, 2023) (unpublished).

In reaching that conclusion, the Eleventh Circuit applied its recent en banc decision in Drazen II, which held that a single unwanted illegal telemarketing text message is sufficient to allege a concrete injury under the TCPA. See Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc). See our prior discussion of Drazen II here.

Drazen II explained that “the Constitution empowers Congress to decide what degree of harm is enough [for standing] so long as that harm is similar in kind to a traditional harm.”

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