Federal Court Finds That TCPA Plaintiff Consented To Debt Collection Calls by Providing Phone Number On Hospital Admission Form

On June 25, Judge Michael Anello of the Southern District of California granted summary judgment in favor of defendant Sharp Healthcare (“Sharp”) in Hudson v. Sharp Healthcare, 13cv1807-MMA, a purported class action alleging two counts under the TCPA (Count I for a negligent violation and Count II for a knowing/willful violation) regarding automated calls concerning unpaid hospital bills, ending that matter absent an appeal.

The original complaint was filed on August 2, 2013, and was comprised primarily of legal assertions (including citations to case law) and boilerplate asserting that defendant had violated the TCPA. The only purported fact alleged was that “Plaintiff was admitted to Sharp on or around September 25, 2012 and may have given them her cellular telephone number ending in 5954 at that time so Sharp could manually contact her about her treatment,” and that she did not consent to receiving autodialed calls. Complaint ¶¶ 14-15 [Dkt. No. 1] (emphasis added). The plaintiff later was granted leave to file an amended complaint that hedged her claims, alleging that if plaintiff provided her number to Sharp, “it was provided to Defendant solely to allow Defendant to contact Plaintiff about medical treatment follow-up” and reiterated that she “did not provide prior express consent to Defendant to be called by an [ATDS].” First Amended Complaint, ¶ 13 [Dkt. No. 29-2].

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Twitter Sued in TCPA Class Action for Messaging Recycled Wireless Numbers

Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).

The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts.

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Sixth Circuit Vacates Denial of Class Certification in Blast Fax Case

In April, we reported on the denial of a class certification motion in a blast fax case in the Northern District of Ohio. On June 12, the Sixth Circuit vacated that order. A copy of the court’s order in In re Sandusky Wellness Center, LLC, No. 14-0301, 2014 U.S. App. LEXIS 12093 (6th Cir. June 12, 2014), is available here.

Plaintiff Sandusky Wellness Center (“Sandusky Wellness”) had alleged that defendants Wagner Wellness, Inc., and its owner, Robert Wagner (collectively “Wagner”), had violated Section 227 of the TCPA by purchasing a list of fax numbers from a third party and sending unsolicited advertisements via fax. See 47 U.S.C. § 227(b)(1)(C) (making it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions apply).

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Offer of Judgment Served Hours Before Motion for Class Certification Filed Moots TCPA Claim

In Barr v. The Harvard Drug Grp., LLC, 13-62019, 2014 U.S. Dist. LEXIS 79422 (S.D. Fla. June 11, 2014), the court found that an offer of judgment served via email mooted the plaintiff’s claim despite the filing of a motion for class certification later that same day.

The class action complaint alleged that the defendant sent faxes in violation of the TCPA. The defendant served an offer of judgment on the plaintiff’s attorneys via email on November 27, 2013, at 11:12 am and also via UPS. The defendant offered to pay $1,500 for each alleged violation of the TCPA, to pay any costs and reasonable attorneys’ fees, and to stipulate to an injunction and the entry of a judgment against it. At 3:25 pm that same day, the plaintiff moved for class certification.

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TCPA Plaintiffs Take Aim at the Sports World

Virtually every customer-facing industry has faced TCPA class actions and sports franchises are no exception. In the past few months, both the Los Angeles Clippers and the Buffalo Bills have settled TCPA suits that relate to text messages.

The Clippers recently agreed to settle a TCPA class action that relates to the alleged dissemination of promotional text messages without the requisite consent. Specifically, in Friedman v. LAC Basketball Club Inc., No. 13-0818 (C.D. Cal.), the plaintiff claimed that he received promotional messages after he sent the team a text message that he wanted it to display on its scoreboard during a game.

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Eleventh Circuit Rejects “Intended Recipient” Interpretation of TCPA’s “Called Party” Language

The Eleventh Circuit recently ruled that the TCPA’s prohibition on prerecorded calling applies to wireless numbers that have been reassigned from a consenting subscriber to a new, presumably nonconsenting one, regardless of the caller’s knowledge of the reassignment. Breslow v. Wells Fargo Bank, No. 12-14564 (11th Cir. 2014). Currently, the Act permits businesses to place prerecorded telemarketing calls to wireless subscribers with “the prior express consent of the called party,” see 47 U.S.C. § 227(b)(1)(A), but does not specify whether the term “called party” refers to the intended recipient of the call or the actual recipient.

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FCC Denies Petition To Change Its Rules So That It Could Preside Over Class Actions

The FCC recently denied a petition that had asked it to amend its rules so that it could preside over class actions. Although the Petition did not mention the TCPA, it would not have taken long for plaintiffs to create a new front of TCPA litigation had the Petition had been granted.

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Court Dismisses TCPA Action Because Plaintiff Refused to Plead Her Telephone Number

On April 17, Judge Robert Bell of the Western District of Michigan found that a plaintiff does not state a claim under the TCPA if she does not plead the telephone number at which she allegedly had been called. See Strand v. Corinthian Colleges, Inc., No. 13-1235, 2014 U.S. Dist. Lexis 52963 (W.D. Mich. Apr. 17, 2014). The decision is a welcome one for defendants who have encountered counsel who only disclose a plaintiff’s telephone number as part of reciprocal (and inevitably asymmetrical) discovery.

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GroupMe Gets an FCC Green Light on Sending Administrative Texts to Confirm Interest in Joining Social Network Groups

Previous TCPA Blog posts have noted that the FCC has a growing backlog of petitions for rulemaking, expedited declaratory ruling, or petitions for clarification on numerous issues posed by the TCPA. [1] On a recent Friday, the FCC acted on two separate long pending petitions for expedited declaratory ruling.  This post highlights the FCC’s ruling on the petition filed by GroupMe, Inc./Skype Communications S.A.R.L. (“GroupMe”).

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FCC Grants Limited Package Delivery Notification “Prior Express Consent” Exemption

On March 27, 2014, the FCC granted, in part, a petition for expedited declaratory ruling filed by the Cargo Airline Association (“CAA”). (The FCC’s CAA Order can be found here.)  In its petition, the CAA asked the FCC: (1) to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package; (2) in the alternative, to declare that package delivery notifications are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.

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