September 25, 2022

Volume XII, Number 268

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September 23, 2022

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September 22, 2022

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NOT SO SLY: Slybroadcast RVM Class Certified in TCPA Suit Against Pest Control Supplier

The fall out from the multi-year SCAM (my opinion) of ringless voicemail providers telling consumers their technology was not subject to the TCPA continues.

Many of you may remember that ringless voicemail providers argues/advertised/promised? that their technology was not subject to the TCPA because *cough* voicemail is an informational service and not a telecommunication service. This argument made no sense because: i) they were not operate a voicemail service, they were leaving voicemails–two different things; and ii) even informational services can be subject to the TCPA; c.f. text messages. Nonetheless I saw at least one white paper from a lawyer explaining how the TCPA does not apply to this technology, which just makes me wonder how some folks sleep at night.

(Related, I saw another white paper recently that strongly implied the use of an autodialer is fine after Facebook so long as random phone numbers are not being dialed–that guy should have his bar license revoked.)

In any event, a ton of companies were swept up in the ringless voicemail craze back in the 2016-2019 timeframe most of whom believed–falsely–that the technology was somehow TCPA proof. That position has melted down. Completely. See hereherehere, and here.

But the fallout continues.

Just this week, for instance, a Court in Connecticut CERTIFIED class action involving the platform with the most cringe-worthy name in all of TCPAWorld: “Slybroadcast” a popular ringless voicemail platform.

Pro tip: just go ahead and avoid using anything calling itself “sly” from now on. Its.. not.

In any event, the court in Lenorowitz v. Mosquito Squas of Fairfield and Westchester, (how about that name tho), 2022 WL 4367596 (D. Conn. Sept. 21, 2022), just certified a class action in favor of a Plaintiff and against a pest control company that had used Slybroadcast to contact over nine thousand customers.

The message was all about tick control–I know there’s a TCPA joke there but I can’t find it:

Hi this is Maria with Mosquito Squad. We sent you an email last week with details about our two supplemental tick control options, and I wanted to see if you had any questions. While tick tubes and granary treatments can be added to your current back pack service, tick tubes eliminate the nymph-stage tick underground and granular products increase the elimination rate of adult ticks above ground. Please call me back if you would like to discuss how we can go above and beyond to control ticks on your property. My number is 877-337-4415. Thank you and have a great day.

In certifying the class the Court rejected a recent standing trend suggesting that the receipt of a single RVM does not cause Article III standing–and that’s a real backbreaker for those of us who have been working so hard to expand the Article III standing limits on TCPA cases. 

The Court also allowed the Plaintiff to change his class definition to exclude certain categories of phone calls that would not otherwise have been actionable and I HATE that. Plaintiffs often try to sandbag defendants with GARBAGE class definitions in their papers that can never be certified. Then they turn around in a REPLY brief and try to change their definition–sometimes after discovery is closed!!! And courts let them get away with this. Its absolutely terrible and demonstrates that the judiciary has really forgotten what due process means in the context of civil litigation. But I digress.

Adding to the fun, the Court found the Plaintiff was adequate to represent the class–and a guy named Zelman was adequate to represent it–even though:

Plaintiff and his counsel are neighbors, attend the same synagogue, their children have attended school together, and on a couple of occasions Plaintiff’s daughter provided babysitting services for Mr. Zelman’s children.

Finally the Court surmounted ascertainability hurdles by allowing the Plaintiff to use a self-identifying affidavit to identify class members:

“Was your phone number ________ a residential landline, or a cell phone number, in April and May of 2019? Yes___ No____.”

Yeah…

In any event, this was case was obviously a trainwreck for the Defense. But that’s what happens when a caller uses technology regulated by the TCPA with no effort to obtain consent.

So, a couple of things to notice here:

1. RVM still covered by the TCPA. Nothing changed there.

2. RVM standing arguments may not carry the day everywhere.

3. MOVE TO STRIKE classes that are not certifiable. Remind courts that these knucklehead plaintiff lawyers will try to change their definitions later in the game and that is NOT FAIR and not allowed. They MUST be made to state their actual class at the pleadings stage.

4. Even a guy like Zelman can get a case certified when calls are made without consent.

5. Self-identifying affidavits are still a thing.

6. Slybroadcast isn’t sly IMO.

7. Pest control companies may, or may not, be in the TCPA cross-hairs now.

© 2022 Troutman FirmNational Law Review, Volume XII, Number 266
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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