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TCPA Case Law Review (Vol. 9): How are there still this many TCPA cases?

The volume of TCPA (Telephone Consumer Protection Act) cases nationwide makes it incredibly difficult to keep up with all of the latest developments. Who wants to engage in the tedious task of reading more than 100 published decisions related to the TCPA several times a year? Lucky for you, the answer is us! We have once again taken on the burden of slogging through the swampy flood of TCPA cases nationwide, so you don’t have to. We have compiled the most noteworthy decisions since our last report, and they are listed below by issue category in alphabetical order.

  • Advertisement: In Mauthe v. National Imaging Associates, Inc., 2019 WL 1752591, *4 (3d Cir. Apr. 17, 2019), the Third Circuit upheld dismissal of a TCPA fax claim, finding that the fax at issue was not an advertisement. The court held that “a recipient’s outside knowledge that a sender sells something does not transform every fax sent by such sender to a recipient with such knowledge into an advertisement. Given the discrepancy between what can be deduced from the fax itself and [plaintiff’s] allegations, it was proper for the District Court to find that the fax did not offer to sell anything of value.” Id. at *2.

  • ATDS: Courts continue to wrestle with what constitutes an automatic telephone dialing system (ATDS) under the TCPA. Multiple courts dismissed TCPA complaints where there were not sufficient factual allegations to suggest that an ATDS was used. See Gonzalez v. HOSOPO Corp., 2019 WL 1533295, *8 (D. Mass. Apr. 9, 2019); Naiman v. Freedom Forever, LLC, 2019 WL 1790471, *3 (N.D. Cal. Apr. 24, 2019); Hazan v. Wells Fargo & Co., 2019 WL 1923272, *3 (D.N.J. April 30, 2019). Additionally, one court granted summary judgment for defendants on ATDS grounds. See Gadelhak v. AT&T Services, Inc., 2019 WL 1429346, *6 (N.D. Ill. Mar. 29, 2019) (holding that “the numbers stored by an ATDS must have been generated using a random or sequential number generator”). But it hasn’t all been good news for defendants on the ATDS front. In Singer v. Las Vegas Athletic Clubs, 2019 WL 1338384, *6 (D. Nev. Mar. 25, 2019), the court granted summary judgment for the plaintiff and found that a system was an ATDS because it had “the present capacity to store numbers to be called, and to dial such numbers.” Similarly, in Jiminez v. Credit One Bank, N.A., 2019 WL 1409425, *6 (S.D.N.Y. Mar. 28, 2019), the court granted plaintiff’s motion for summary judgment, holding that the defendant’s LiveVox system was an ATDS.

  • Class Certification: Plaintiffs’ lawyers like to say that class certification is “common” in TCPA cases. But the reality is that every case is different. In just the last couple months, at least four courts have denied class certification or struck class allegations in TCPA cases. See Gorss Motels, Inc. v. Otis Elevator Company, 2019 WL 1490102 (D. Conn. April 4, 2019) (denying class certification); Revitch v. Citibank, N.A., 2019 WL 1903247 (N.D. Cal. April 28, 2019) (denying class certification); Kostmayer Constr., LLC v. Port Pipe & Tube, Inc., 2019 WL 1523045 (W.D. La. Apr. 8, 2019) (denying class certification); Garvey v. Amer. Bankers Ins. Co. of Fla., 2019 WL 2076288 (N.D. Ill. May 10, 2019) (striking class allegations). But there also have been four courts that granted class certification in TCPA cases. See McCurley v. Royal Seas Cruises, Inc., 2019 WL 1383804 (S.D. Cal. Mar. 27, 2019) (granting class certification); Brown v. DirecTV, LLC, 2019 WL 1434669 (C.D. Cal. Mar. 29, 2019) (granting class certification); Bakov v. Consolidated World Travel, Inc., 2019 WL 1294659 (N.D. Ill. Mar. 21, 2019) (granting class certification but striking testimony of plaintiff’s expert Randall Snyder); Bennett v. GoDaddy.com LLC, 2019 WL 1552911 (D. Ariz. Apr. 8, 2019) (granting class certification).

  • Debt Collection Exemption: In a significant development for companies in the business of servicing federal loans, the Fourth Circuit in American Association of Political Consultants, Inc. v. Federal Communications Commission, 2019 WL 1780961 (4th Cir. Apr. 24, 2019), held that the TCPA’s federal debt collection exemption is unconstitutional, violating the First Amendment.  This same issue is currently being litigated in the Ninth Circuit in Gallion v. Charter Communications, Case No. 18-55667 (9th Cir.), meaning we could see a showdown in the Supreme Court if the Ninth Circuit upholds the TCPA.

  • Vicarious Liability: The court’s decision in Canary v. Youngevity International, Inc., 2019 WL 1275343, *5 (N.D. Cal. Mar. 20, 2019), provides a detailed analysis of vicarious liability under the TCPA, ultimately holding that the plaintiff had failed to plead adequate facts to establish vicarious liability.

© 2019 Vedder Price

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About this Author

Bryan Clark Media & Privacy Law  litigation Vedder Price Law Firm Chicago
Associate

Bryan Clark is an Associate at Vedder Price and a member of the Litigation group in the firm’s Chicago office.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.

Mr. Clark’s other representative work includes drafting successful dispositive motions in right of publicity and invasion of privacy cases,...

312-609 7810
Blaine C. Kimrey, media defense Litigation, Vedder Price Law Firm Chicago Office
Shareholder

Blaine C. Kimrey is a Shareholder in the Litigation practice area in the firm’s Chicago office.

A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property, entertainment, insurance, banking, real estate, civil rights, telecommunications, and mass catastrophes and torts.

312-609 7865