Although there have not been any groundbreaking cases to start the new year, 2019 is off to a good start for the TCPA defense bar. Several courts have denied class certification in putative TCPA class actions while other courts have granted dismissal or summary judgment for the defendants. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order.
- Advertisements: In Mauthe v. Spreemo, Inc., 2019 WL 342715, *2 (E.D. Pa. Jan. 28, 2019), the court granted the defendant’s motion to dismiss because the fax at issue in the case was not an advertisement. The court determined that the fax, on its face, did not promote goods or services, and the plaintiff failed to allege any facts suggesting that the fax was a pretext for a broader advertising scheme. Id. at *2-3. See also Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc., 2019 WL 527497, *4 (N.D. Ill. Feb. 11, 2019) (finding that the faxes at issue “did not seek to initiate new commercial transactions, but to complete a necessary condition of pending transactions”).
- ATDS: In Duran v. La Boom Disco, Inc., 2019 WL 959664, *5 (E.D.N.Y. Feb. 25, 2019), the court found that the defendant’s use of ExpressText and EZ Texting did not constitute the use of an ATDS.
- Class Certification: At least three district courts have denied class certification in TCPA cases since our last report in mid-January. In Gorss Motels, Inc. v. AT&T Mobility LLC, 2019 WL 625699, *6 (D. Conn. Feb. 14, 2019), the court denied class certification for lack of predominance, finding that individualized issues of consent would predominate over classwide issues. In Rivera v. Servis One, Inc., 2019 WL 1034220, *6 (M.D. Fla. March 4, 2019), the court denied class certification, finding that the TCPA class was not ascertainable and the plaintiff could not establish predominance. And in Gordon v. Caribbean Cruise Line, Inc., 2019 WL 498937, *9-11 (N.D. Ill. Feb. 8, 2019), the court denied class certification because the class failed to satisfy the adequacy, predominance, and superiority requirements. But see Knapper v. Cox Communications, Inc., 2019 WL 467163, *8 (D. Ariz. Feb. 6, 2019) (granting class certification in a TCPA ATDS case).
- Personal Jurisdiction: In Cunningham v. CBC Conglomerate, LLC, 2019 WL 452749, *9 (E.D. Tex. Feb. 5, 2019), the court dismissed a TCPA claim for lack of personal jurisdiction where the defendant did not take any actions to establish contacts with the forum state, but rather the contacts were random, fortuitous and attenuated.
- Tolling: The Second Circuit addressed American Pipe tolling in an unpublished opinion in McCabe v. Lifetime Entertainment Services, LLC, 2019 WL 409440 (2d Cir. Jan. 31, 2019). Under American Pipe, as interpreted by China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1801 (2018), an unnamed plaintiff’s individual claim is tolled pending a resolution of a putative class action. In McCabe, the court reiterated that a tolled statute of limitations for an unnamed plaintiff’s individual claim resumes running from the district court’s denial of class certification, not the appellate court’s ruling on the same issue. Id. at *1-2.
- Vicarious Liability: In Warciak v. Subway Restaurants, Inc., 2019 WL 978666, *2-3 (N.D. Ill. Feb. 28, 2019), the court dismissed a TCPA claim for failure to adequately plead direct or vicarious liability.