The Class Motion Weekly Wire – Episode 22_ TCPA Class Motion Litigation

Duane Morris Takeaway: This week’s episode of the Class Motion Weekly Wire options Duane Morris companions Jennifer Riley, Katelynn Grey, Sheila Raftery Wiggins, and affiliate Shaina Wolfe with their evaluation of key traits and notable rulings within the class motion panorama of the Phone Shopper Privateness Act (“TCPA”). We hope you benefit from the episode.

Episode Transcript

Jennifer Riley: Thanks for being right here once more, for the following episode of our Friday weekly podcast, the Class Motion Weekly Wire. I’m Jen Riley, companion at Duane Morris, and becoming a member of me at present are companions Sheila Raftery Wiggins and Katelynn Grey and affiliate Shaina Wolfe. Thanks guys for being on the podcast at present.

At present we needed to debate traits and necessary developments in Phone Shopper Safety Act or “TCPA” class motion litigation. The TCPA has lengthy been a booming focus of client litigation, notably within the class motion area. The statute was enacted in 1991 – it’s a federal statute – it’s geared toward defending shoppers from firms that use ATDS, that means computerized phone dialing techniques, to interact in mass telemarketing strategies, together with robocalls. The TCPA initially centered on undesirable phone calls and faxes. For a few years, plaintiffs efficiently have alleged {that a} defendant used an computerized phone dialing system (ATDS) to name or ship messages to a cell telephones with out acquiring prior categorical consent.

Sheila, are you able to clarify a number of the current Supreme Court docket litigation governing the TCPA’s interpretation – particularly, what constitutes an autodialer?

Sheila Raftery Wiggins: Positive, Jen. In 2021, the U.S. Supreme Court docket issued its ruling Fb, et al. v. Duguid, which adopted a slim interpretation of what gadgets depend as an ATDS. Earlier than Duguid, some federal circuits held that tools might qualify as an autodialer simply because it autodialed saved cellphone numbers that had not been randomly or sequentially generated within the first occasion. However the Supreme Court docket rejected this interpretation and held that “a vital characteristic of an autodialer beneath § 227(a)(1)(A) is the capability to make use of a random or sequential quantity generator to both retailer or produce cellphone numbers to be known as,” as a result of the opposite interpretation “would seize just about all trendy cell telephones, which have the capability to retailer phone numbers to be known as and dial such numbers.”

Jen: Acquired it. Are there different kinds of communication ruled by the TCPA?

Katelynn Grey: As you may think about, Jen, the TCPA was enacted thirty years in the past, so after all the strategies and the applied sciences that companies use to interact prospects now has modified. I’m certain all of you’ve got acquired textual content messages from companies for quite a lot of totally different causes, together with to speak with prospects, solicit client suggestions, announce product promotions, determine the standing of a supply, even make the most of two-factor safety authentication. So, on account of that – on account of the adjustments which have occurred within the final thirty years – courts have now begun deciphering the TCPA to incorporate textual content messages. The TCPA additionally empowers the Federal Communications Fee, or one thing that we check with because the FCC, to “prescribe laws to implement” the statute, and to create exemptions to statutory legal responsibility “by rule or order.” 47 U.S.C. § 227(b)(2)(B). So beneath this authority, the FCC has truly created a “two-tier system of consent” for TCPA legal responsibility, with totally different sorts of calls primarily requiring several types of consent.

Jen: Shaina, are you able to speak about how profitable the plaintiffs’ bar has been in acquiring class certification in TCPA class motion instances?

Shaina Wolfe: The plaintiffs’ bar was pretty profitable in 2022 the place they sought class certification over TCPA points, notably regarding or involving robocalls. The plaintiffs’ bar received 67% of motions for sophistication certification, and firms secured denials in 33% of the choices.

Jen: So it sounds just like the plaintiffs’ bar has been pretty profitable total. Sheila, are you able to touch upon a number of the notable profitable certification rulings on this area?

Sheila: Positive – in Head, et al. v. Citibank, N.A., the plaintiff acquired 100 robocalls from the defendant, a financial institution, over the course of three months relating to an overdue credit score account of a person she didn’t know. The plaintiff was by no means a buyer of the defendant and didn’t authorize the person or anybody else to open an account with the defendant utilizing her cellphone quantity. The plaintiff filed a category motion, alleging that the defendant routinely violated the TCPA by putting calls utilizing a synthetic or prerecorded voice to phone numbers assigned to a mobile phone service, with out prior categorical consent. The court docket granted the movement. The court docket defined that the defendant didn’t deny that it locations billions of calls every year relating to delinquent accounts, or that hundreds of thousands of accounts in its system are marked “incorrect quantity” and that atleast one unsolicited name have to be positioned to the quantity earlier than a phone quantity is marked incorrect. Furthermore, the court docket famous that the defendant didn’t dispute that it known as the plaintiff repeatedly earlier than it marked the account related along with her quantity “cease-and-desist,” making a transparent inference that there could also be numbers not but marked “incorrect,” “no consent,” or “cease-and-desist” for which the defendant doesn’t have authorization to robocall. The court docket additionally discovered that the proposed class glad the typicality and commonality necessities, that widespread questions of regulation and truth predominated, and that within the absence of a category motion, 1000’s of meritorious claims would doubtless go unredressed as a result of the price of litigation would dwarf any potential reward beneath the TCPA.

Jen: Thanks a lot Sheila. Katelynn, had been there any memorable class certification rulings denying certification in 2022?

Katelynn: So there was one which I’ll speak about, however I simply would typically say in 2022 it appears that evidently defendants in TCPA class actions continued to achieve defeating class certification by demonstrating that the proposed consultant, or the person who sought to signify the category, was insufficient or atypical, so primarily didn’t have something in widespread with the opposite class members – particularly the place the circumstances surrounding their consent distinguish them from these different class members. So a kind of examples was a case known as Bustillos, et al. v. West Covina Corp. Health. This was a case the place a former gymnasium member went into the defendant’s gymnasium and he supplied his cellphone quantity to an worker who entered it into his profile – and I’m certain plenty of us do that on a regular basis. Sadly for the corporate, the cellphone quantity supplied was truly one digit off from the precise variety of the previous gymnasium member – and belonged to the plaintiff on this case. At one level, the defendant approved its advertising and marketing company to ship out a one-time pre-recorded phone message to former gymnasium members and visitors who had expressed curiosity in becoming a member of the gymnasium at a sure level – primarily inviting them to hitch or rejoin. Most of those people had supplied their phone numbers after they crammed out a visitor registration or a contract with the defendant after they joined the gymnasium the primary time. The plaintiff was one among 1,400 people that acquired a pre-recorded message on her cellphone from the defendant providing a gymnasium membership promotion. So on this occasion, the Court docket denied certification as a result of they discovered the plaintiff on this case didn’t allege or produce proof that any of the opposite messages had been despatched to incorrect numbers and due to this fact discovered she was not typical to the members of the category she proposed to signify.

Shaina: One other widespread purpose that courts deny class certification in TCPA instances is because of predominance of an individualized concern. For TCPA instances, one of the vital highly effective affirmative defenses is displaying consent to the telemarketing messages. Courts have tended to rule in favor of defendants the place they will present {that a} substantial portion of the proposed class consented to the communications; the aim and nature of every communication various from individual to individual; or figuring out who supplied consent and who didn’t can be impractical or not possible. There have been additionally a number of case rulings that demonstrated this protection, together with Cooper v. Neilmed Prescription drugs, Inc., the place the defendant efficiently provided 5 strategies by which it acquired prior categorical invitation or permission from recipients earlier than sending faxes, which creates virtually a type of presumption that the consent concern will probably be individualized.

Jen: Earlier than we flip to settlements, if I recall the biggest TCPA jury verdict ever was overturned on attraction final 12 months, is that appropriate?

Sheila: That’s appropriate. The biggest TCPA jury verdict concerned in an award of $925 million, nonetheless, the defendant efficiently overturned the decision on attraction. In Wakefield, et al. v. ViSalus, Inc., the plaintiffs filed a category motion alleging that the defendant made illegal phone calls utilizing prerecorded voice messages in violation of the TCPA. Following a trial, the jury returned a verdict in favor of the plaintiffs and located that the defendant despatched over 1.8 million prerecorded calls to class members with out prior categorical consent. Accordingly, the jury awarded the minimal statutory damages of $500 per name for a verdict towards the defendant of $925 million. The defendant filed a post-trial movement difficult the constitutionality of the statutory damages award beneath the due course of clause of the Fifth Modification as being unconstitutionally extreme. The district court docket denied the movement. On attraction, the Ninth Circuit vacated and remanded the district court docket’s denial of the defendant’s movement. On attraction, the defendant contended that even when the TCPA’s statutory penalty of $500 per violation was constitutional, an mixture award of $925,220,000 wasso “extreme and oppressive” that it violated the defendant’s due course of rights. So this case has finally obtained an extension of time from the Supreme Court docket to file a petition for certiorari.

Jen: Wow, we’ll completely preserve listeners up to date as to what occurs subsequent in that case. So far as TCPA settlements, I doubt there have been any quire that enormous, however had been there any important settlements over the previous 12 months – Shaina, are you able to touch upon that?

Shaina: I can. Though none had been within the a whole lot of hundreds of thousands, there have been a number of multi-million class-wide TCPA settlements in 2022. 4 of the highest 10 had been over $15 million and the worth of the highest 10 totaled over $134 million.

Jen: Thanks Shaina. Nice insights and evaluation, everybody. I do know that these are solely a number of the instances that had fascinating rulings over the previous 12 months within the TCPA class motion area. The rest of 2023 is certain to provide us some extra insights into the ways in which class actions are evolving within the TCPA class litigation space. Thanks once more all people for becoming a member of us at present, because of the panel – we sit up for connecting once more subsequent Friday on the following episode of the Class Motion Weekly Wire.