Phone and gavelAs 2018 comes to a close, there is no sign that the development of TCPA case law will be slowing any time soon. Since our last report in October, we have reviewed at least 75 new decisions discussing the TCPA in one way or another. Some cases, like Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC (which we discussed last week), make bigger news than others. But it’s important to keep tabs on the full TCPA litigation landscape to understand what patterns are emerging and what arguments are winning. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order.

  • ATDS: Courts continue to weigh in on what technologies do—and more importantly, do not—constitute automatic telephone dialing systems under the TCPA. See Gary v. TrueBlue, Inc., 2018 WL 4931980, at *7 (E.D. Mich. Oct. 11, 2018) (finding that defendant’s text messaging system was not an ATDS and granting summary judgment); Roark v. Credit One Bank, N.A., 2018 WL 5921652, at *4 (D. Minn. Nov. 13, 2018) (finding that defendant’s dialing system was not an ATDS and granting summary judgment); Gaza v. Auto Glass America, LLC, 2018 WL 5775915, at *1 (M.D. Fla. Nov. 2, 2018) (finding defendant’s text messaging system was not an ATDS and granting summary judgment); Hatuey v. IC System, Inc., 2018 WL 5982020, at *1 (D. Mass. Nov. 14, 2018) (finding that defendant’s dialing system was not an ATDS and granting summary judgment for defendant). Although these cases are trending in the right direction for defendants, there is not unanimity. At least one court recently found that a plaintiff’s allegation that the defendant used a predictive dialer was sufficient to plead use of an ATDS and, notably, that the 2003 FCC Order on this point was still good law and entitled to deference. See Maes v. Charter Communication, 2018 WL 5619199, at *1 (W.D. Wis. Oct. 30, 2018).
  • Class certification: Bais Yaakov of Spring Valley v. ACT, Inc., 2018 WL 5281746 (D. Mass. Oct. 24, 2018), is the latest decision to deny class certification in a TCPA case. The court found that the individual consent defense to faxed advertisements precluded a finding of predominance of common questions, thus barring class certification of a broader class, and a class comprised only of those who received an unsolicited fax without an opt-out provision from the defendant was an impermissible fail-safe class. Id. at *1. But a TCPA case was certified as a class action just this week in Keim v. ADF MidAtlantic, LLC, Case No. 12-cv-80577 (S.D. Fl. Dec. 4, 2018) (Docket Entry 259).  On the issue of consent, the court held that “based upon the present record . . . it is unlikely that the issue of consent will raise individualized inquiries.” Id. at p. 3.
  • Collections: Focusing on the language of the TCPA added by the Bipartisan Budget Act of 2015, the court in Green v. Navient Solutions, LLC, 2018 WL 6303775, at *5 (S.D. Ala. Nov. 29, 2018), found that the defendant loan servicers calls were exempt from the TCPA because they were “made solely to collect a debt owed to or guaranteed by the United States.” Moreover, the court noted that the proposed FCC regulations that plaintiff attempted to rely on to circumvent this express statutory language never went into effect. Id. at *6.
  • Personal jurisdiction: Defense counsel often gloss over jurisdictional challenges, but the ruling in Florence Mussat, M.D., S.C. v. Iqvia, Inc., shows that such challenges can be beneficial even if the defendant cannot secure outright dismissal. There, the court granted defendant’s motion to strike a nationwide class definition, holding that because the unnamed putative class members who were not Illinois residents did not receive the alleged faxes in Illinois, the court lacked specific personal jurisdiction over those unknown individuals. 2018 WL 5311903, at *1 (N.D. Ill. Oct. 26, 2018).
  • Standing: In Supply Pro Sorbents, LLC v. RingCentral, Inc., 2018 WL 6068590 (9th Cir. Nov. 20, 2018), the Ninth Circuit affirmed a district court’s dismissal for lack of standing. The district court had found that plaintiff’s injury, if any, was de minimis and therefore did not confer Article III standing. Id. at *1. The Ninth Circuit also noted that the fax at issue was not an advertisement. Id.
  • Statute of limitations/tolling: In Weitzner v. Sanofi Pasteur Inc., 2018 WL 6175580, at *1 (3rd Cir. Nov. 27, 2018), the Third Circuit affirmed a district court’s dismissal on statute of limitations grounds, holding that a previous state court putative class action involving the same claims and same parties did not toll the plaintiffs’ individual claims or the purported class claims under the American Pipe
  • Technical violations: The court in Fisher v. Alarm.com Holdings, Inc., 2018 WL 5717579, at *2 (N.D. Ill. Nov. 1, 2018), reiterated the widely held conclusion that there is no private cause of action for the technical requirements of the TCPA. The court therefore dismissed those aspects of the plaintiff’s complaint, as well as inadequate vicarious liability allegations under Rule 12(b)(6). Id. at *3.
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Photo of Blaine C. Kimrey Blaine C. Kimrey

Blaine C. Kimrey is a Shareholder at Vedder Price, Chair of the Media & Entertainment Litigation practice group, and a member of the Privacy, CyberSecurity, & Media practice group.  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.  Among other accolades, Mr. Kimrey is Chambers USA Band 2 rated for Media & Entertainment Litigation in the state of Illinois, is listed in Best Lawyers in America for Intellectual Property Litigation, and is AV-rated by Martindale-Hubbell.

Photo of Bryan K. Clark Bryan K. Clark

Bryan K. Clark is an Associate at Vedder Price and a member of the Privacy, CyberSecurity & Media practice group.  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.