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District Court preliminarily approves TCPA class action settlement
On March 3, the U.S. District for the Central District of California granted final approval of a TCPA class action settlement with a satellite TV company. According to a memorandum in support of plaintiff’s motion for preliminary approval of class action settlement and certification, the plaintiff class alleged that the defendant violated the TCPA by using an artificial or prerecorded voice to call cell phones without the prior express consent of class members, consisting of about 22,000 individuals. The settlement class includes all people who received non-emergency calls from the defendant and four of its debt collection companies “regarding a debt allegedly owed to [the defendant], to a cellular telephone through the use of an artificial or prerecorded voice, and who has not been a [defendant] customer at any time since October 1, 2004.” The settlement requires the defendant to pay an all-cash non-reversionary sum of $17 million. The settlement could also approach or exceed $500 in damages per call for class members who make claims and includes an award of attorney fees of up to $5.61 million, or 33 percent of the settlement fund, in addition to litigation costs. Specifically, the settlement would provide $606.06 per call for settlement class members who received calls from two of the defendant’s debt collectors, and those members will get two shares of the pro rata distribution. Settlement class members who received calls from two other of the defendant’s debt collectors will get $303.03 per call and one share of the pro rata distribution.
District Court grants final approval in TCPA class action
On September 1, the U.S. District Court for the Central District of California granted final approval of a class action settlement in a TCPA suit. According to the plaintiffs’ motion for preliminary approval of the class action settlement, the plaintiffs are non-customers who the defendant contacted as part of its efforts to collect on the account of a defendant’s customer and who had not consented to calls from the defendant. The plaintiffs further alleged that the defendant used its autodialer to place those calls and conveyed prerecorded messages to third parties who had not consented to receive such calls, and that through analysis of the defendant’s records, broad notice to class members, and a robust claims verification procedure, it was possible to provide notice to non-customer class members. According to the settlement, the class includes any customer in the U.S. who received automated, non-emergency calls from the defendant on their cell phones from March 2012 through March 2022, and was not a party to an agreement with the defendant. The settlement noted that class members are expected to get between $75 and $250 per person, stating that “this estimated settlement range compares very favorably with other 'wrong number' settlements . . . , and with the $500 penalty for violation of the TCPA.”
Class certification granted in TCPA suit against satellite provider
On August 1, the U.S. District Court for the Northern District of West Virginia granted a plaintiff’s motion for class certification in an action against a satellite TV company (defendant) for allegedly placing unwanted telemarketing robocalls. According to the order, the plaintiffs alleged that the defendant retained a communications company to sell the defendant’s services and that the communications company purchased a list of leads and phone numbers from a third party to make telemarketing calls. According to the plaintiffs, the communications company failed to scrub the list for numbers on the national do-not-call list and called those numbers in violation of the TCPA. The district court noted that “[t]here are two overriding questions in this case: (1) whether [the communications company] contacted class members listed on the do-not-call registry; and (2) whether [the defendant] is liable for [the communication company’s] actions.” The district court further noted that “[a]ny individual issues or defenses are limited and easily resolved with aggregate data from defendant []." In agreeing with the “plaintiffs’ contention that this is a ‘model case for the application of the class action mechanism,’” the district court certified a nationwide class of nearly 114,000 individuals whose telephone numbers were listed on the do-not-call list and who received more than one telemarketing call within any 12-month period at any time from the communications company to promote the defendant.
11th Circuit reverses class action settlement in TCPA case
On July 27, the U.S. Court of Appeals for the Eleventh Circuit vacated and remanded a district court’s approval of a class action certification and settlement agreement in an TCPA action after determining that the plaintiff lacked Article III standing in light of the U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez (covered by InfoBytes here). According to the opinion, the plaintiff sued the defendant, alleging it violated the TCPA by calling and texting her “solely to market its services and products through a prohibited automatic telephone dialing system.” After the case was consolidated, and after negotiating with the defendant, the plaintiffs submitted a proposed class settlement agreement that established a settlement fund of $35 million to the 1.26 million settlement class members, who would receive either a $35 cash payment or a $150 voucher for the defendant’s services. The district court had noted Salcedo v. Hanna, in which the 11th Circuit held “that receipt of a single unwanted text message was not a sufficiently concrete injury to give rise to Article III standing,” and that “the proposed class definition included individuals who received only one text message from [the defendant].” The district court determined that “even though some of the included class members would not have a viable claim in the Eleventh Circuit, they do have a viable claim in their respective Circuit [because of a circuit split]. Thus, [the defendant] is entitled to settle those claims in this class action although this Court would find them meritless had they been brought individually in the Eleventh Circuit”
On appeal, the 11th Circuit noted that TransUnion LLC v. Ramirez held that “every class member must have Article III standing in order to recover individual damages.” The appellate court further noted that “TransUnion says that we can’t award damages to plaintiffs who do not have Article III standing. And Article III standing goes to the heart of our jurisdiction to hear cases in the first place. It further stated that the court “cannot … check [its] Article III requirements at the door of the class action. Any class definition that includes members who would never have standing under our precedent is a class definition that cannot stand.”
District Court approves $2.5 million settlement over prerecorded telemarketing messages
On June 24, the U.S. District Court for the Central District of California granted final approval of a $2.5 million class action settlement resolving claims that an auto dealer group and marketing director (collectively, “defendants”) violated the TCPA by sending “prerecorded telemarketing messages” to consumers’ cell phones without receiving consumers’ express written consent. According to the second amended complaint, the plaintiff sued the defendants after he allegedly received unsolicited prerecorded text messages advertising one of the auto group’s dealerships. Under the terms of the agreement, class members (comprised of consumers who were sent prerecorded messages from the defendants, auto dealerships managed by the defendant, or anyone acting on the defendant’s behalf, including employees, agents, third-party contractors, and sub-contractors) will receive a portion of the $2.5 million settlement. The settlement amount also provides for up to $625,700 in attorneys’ fees, nearly $12,600 for costs, and $125,000 for the settlement administrator. The class representative will be given a $5,000 service award. Additionally, the defendants and dealerships are required to “adopt policies and procedures regarding compliance with the TCPA and the National Do Not Call Registry.”
District Court gives final approval in TCPA class action settlement
On June 24, the U.S. District Court for the Eastern District of New York granted final approval of a $38.5 million settlement in a class action against a national gas service company and other gas companies (collectively, defendants) for allegedly violating the TCPA in connection with calls made to cell phones. As previously covered by InfoBytes, the plaintiff’s memorandum of law requested preliminary approval of the class action settlement. The settlement establishes a settlement class of all U.S. residents who “from March 9, 2011 until October 29, 2021, received a telephone call on a cellular telephone using a prerecorded message or artificial voice” regarding several topics including: (i) the payment or status of bills; (ii) an “important matter” regarding current or past bills and other related issues; and (iii) a disconnect notice concerning a current or past utility account. Under the terms of the settlement, the defendants will provide monetary relief to claiming class members in an estimated amount between $50 and $150. The settlement will additionally require the companies to implement new training programs and procedures to prevent any future TCPA violations. The settlement permits counsel for the proposed class to seek up to 33 percent of the settlement fund to cover attorney fees and expenses.
3rd Circuit: Student loan servicer’s calling system is not an autodialer under the TCPA
On June 14, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling in favor of a defendant student loan servicer, holding that it is not enough for telecommunication equipment to be capable of using a random or sequential number generator to dial telephone numbers in order to meet the definition of an automatic telephone dialing system (autodialer). Instead, to constitute a violation of the TCPA, the telecommunication system must actually employ such random- or sequential-number generation when placing the actual call. The plaintiffs filed a putative class action complaint against the defendant alleging it used an autodialer to call class members’ cell phones without their prior express consent. The defendant countered that the TCPA claims fail because its calling system “lacked the capacity to generate random or sequential telephone numbers and then dial those numbers.” As such, it could not be an autodialer. The district court granted summary judgment in favor of the defendant, ruling that the defendant did not use an autodialer to place the calls at issue as the calling system did not have “the necessary present capacity to store or produce telephone numbers using a random or sequential number generator.”
On appeal, the 3rd Circuit disagreed with the district court’s finding that the defendant’s telecommunication system was not an autodialer, noting that the district court used too narrow a definition of the term “equipment” and holding that “an [autodialer] may include several devices that when combined have the capacity to store or produce telephone numbers using a random or sequential number generator and to dial those numbers.” Thus, the 3rd Circuit held that the district court erred in accepting defendant’s argument that the defendant’s telephone system was not an autodialer because the defendant’s SQL Server (which was capable of generating random and sequential numbers) was independent of the defendant’s dialing system.
Nonetheless, the 3rd Circuit affirmed the district court’s ruling on the basis that it did not matter whether the defendant’s calling system could be classified as an autodialer under the TCPA because the phone numbers were drawn from a contact list stored on the defendant’s SQL Server and not randomly generated. As such, the appellate court held that the plaintiffs’ claims fail because the defendant did not actually use random- or sequential-number generation when it placed the specific calls in question.
While agreeing with the decision to affirm, one of the judges argued that the majority focused on the wrong question. “In my view, the fundamental question is: what is an [autodialer] under Section 227(a)(1)? I would hold that a dialing system must actually use a random or sequential number generator to store or produce numbers in order to qualify as an [autodialer] under § 227(a)(1),” the concurring judge wrote. “Because [defendant’s] dialing system did not do so, it is not an [autodialer], and [defendant] is entitled to summary judgment.”
9th Circuit affirms lower court’s decision in TCPA suit
On June 10, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s ruling on summary judgment that an individual’s text messages sent to a financial institution provided the express consent required under the TCPA to be contacted via an autodialer system. According to the opinion, the plaintiff, who was not a customer of the defendant, sent 11 text messages to the defendant’s short code number. Ten of the messages were unrelated to the defendant’s business, and the plaintiff’s messages were replied to with an automated message providing instructions about how to stop receiving text messages and how to contact the defendant. The remaining text message from the plaintiff to the defendant consisted of the word “STOP” to which the defendant replied with the response that plaintiff is not subscribed and will not receive alerts. These reply texts were the only text messages the defendant sent to the plaintiff’s mobile phone. Based on these facts, the plaintiff filed suit in the District of Connecticut, alleging that the defendant violated the TCPA by replying to his text messages using an automatic call-generating capability without obtaining the plaintiff’s consent. The defendant filed a motion to dismiss on procedural grounds, and plaintiff voluntarily withdrew the suit and subsequently sued in the District of Hawaii under similar facts and claims. The court granted the defendant’s motion for summary judgment, ruling that each of the texts sent to the defendant by the plaintiff constituted prior express consent to receive reply texts. The court also awarded attorneys’ fees to defendant as “costs” under Federal Rule of Civil Procedure 41(d).
The 9th Circuit agreed with the district court’s determination that the plaintiff “expressly consented to receive reply text messages.” With respect to the awarding of attorney’s fees, the appellate court recognized a circuit split on the issue of whether Rule 41(d) costs included attorney’s fees, and held that, (i) “costs” under Rule 41(d) does not include attorney’s fees as a matter of right and (ii) for purposes of the TCPA, “cost” does not include attorney’s fees because “it is undisputed that the TCPA does not provide for the award of attorney’s fees to the prevailing party.”
District Court grants defendant’s summary judgment in TCPA case
On June 6, the U.S. District Court for the Northern District of Ohio granted a national bank’s (defendant) motion for summary judgment in a case alleging it violated the TCPA by placing unwanted telephone calls and text messages. According to the order, the plaintiff filed suit in April 2021, alleging the defendant called him 88 times without his consent regarding a debt using an automated dialing system in violation of the TCPA. The court found that the plaintiff had given his consent to be contacted when he signed a signature card for his account that included his number. The court noted that his consent permitted the defendant “to use text messaging, artificial or prerecorded voice messages and automatic dialing technology for informational and account service calls, but not for telemarketing or sales calls.” The court further concluded that “prior express consent permits a creditor to contact a debtor by any telephonic means,” and emphasized that the “TCPA is not intended to stop a bank from calling its customers, but rather to stop telemarketers from making random, sequentially generated ‘robocalls’ to consumers who do not wish to receive them.”
District Court certifies TCPA class action against debt collector
On May 31, the U.S. District Court for the Western District of Washington granted a plaintiff’s motion for class certification in an action alleging a defendant debt collector placed unsolicited calls to borrowers’ cell phones when attempting to collect federal student loan debt. The plaintiff contended that the defendant violated the TCPA by calling her up to seven times a day without her consent using an automatic telephone dialing system (autodialer) and prerecorded calls or artificial voice calls. According to the plaintiff, in 2019, the defendant obtained her cell phone number through skip-tracing services performed by one of its vendors. The defendant allegedly had access to a call recording from a 2017 conversation between a Department of Education contractor and the plaintiff during which the plaintiff provided her phone number. The defendant, however, allegedly was not aware of the recording nor did it seek to access the file until after the plaintiff filed suit. The defendant also supposedly received a file from the contractor containing the plaintiff’s number but not until after it already acquired the number from the skip-tracing vendor. The defendant denied that it used an autodialer or made prerecorded calls or artificial voice calls. The defendant also claimed that “because it had constructive access to the recording of plaintiff’s 2017 phone conversation with [the contractor] and received the [] file with plaintiff’s number, it had plaintiff’s prior express consent to receiving calls.”
The court certified the class, ruling that the question of whether access to the files in question was sufficient to confer consent under the TCPA is “a closer legal question, but not one that overcomes predominance at this stage.” According to the court, “the issue of whether defendant can show that its right of access to [the contractor’s] files constituted prior express consent is one that is currently capable of classwide resolution. Accordingly, while the affirmative defenses defendant presses will no doubt be important to the outcome of the litigation, they presently do not undercut the central common issues in this case.”