Phone and gavelPerhaps not surprisingly, there was no vacation this summer for TCPA litigation.  We already addressed the 11th Circuit’s big decision on Article III standing in Salcedo.  But we’ve also combed through the 150+ TCPA-related decisions over the summer to keep you apprised of the latest developments in this area of the law.  We’ve compiled the most noteworthy decisions since our last report, and they’re listed below by issue category in alphabetical order.

ATDS:  Courts continue to wrestle with how to define and plead an ATDS.  In Wijesinha v. South Florida MGS, LLC, 387 F.  Supp. 3d 1412, 1415 (S.D. Fla. 2019), the court found that the plaintiff had adequately pled an ATDS because “Plaintiff alleged that the text message does not provide any identifiable characteristic of the intended recipient, is impersonal and generic, and includes an ‘optout’ feature” and “[t]he phone number used by Defendant is a ‘long code’ that enables it to send text messages en masse, while deceiving recipients into believing the message was personalized and sent from an individual;” see also Espejo v. Santander Consumer USA, Inc., 2019 WL 2450492, at *1 (N.D. Ill. June 12, 2019) (denying summary judgment to defendant on ATDS issue); Allan v. Pennsylvania Higher Education Assistance Agency, 2019 WL 3890214, at *1 (W.D. Mich. Aug. 19, 2019) (granting summary judgment to plaintiff upon finding that equipment used to dial cell phones was an ATDS).  But the court granted a motion to dismiss in Snow v. General Electric Company, 2019 WL 2500407, at *4 (E.D.N.C. June 14, 2019), because the plaintiff failed to plead “any facts permitting an inference that the text messages plaintiff received were sent using equipment that stores or produces numbers to be called ‘using a random or sequential number generator.’”  See also Smith v. Premier Dermatology, 2019 WL 4261245, at *5-*6 (N.D. Ill. Sept. 9, 2019) (granting summary judgment to defendant because the equipment at issue did not “randomly or sequentially” dial numbers).

Class certification:  It was a good summer for TCPA class action defendants as several courts denied class certification.  See Blake Tishman, P.A. v. Baptist Health South Florida, Inc., 2019 WL 3890506, at *24 (S.D. Fla. June 10, 2019) (denying class certification where permission could not be determined on a uniform basis across the class); Hunter v. Time Warner Cable Inc., 2019 WL 3812063, at *12 (S.D.N.Y. Aug. 14, 2019) (denying class certification where plaintiff could not establish a method for identifying the class members and individual issues would predominate); E&G Inc. v. Mount Vernon Mills, Inc., 2019 WL 4034951, at *7 (D.S.C. Aug. 22, 2019) (denying class certification where permission would need to be proven on an individual basis); Chinitz v. NRT West, Inc., 2019 WL 4142044, at *1 (N.D. Cal. Aug. 30, 2019) (denying class certification for failure to establish numerosity and failure to identify a common question); Fennell v. Navient Solutions, LLC, 2019 WL 3854815, at *1 (M.D. Fla. June 14, 2019) (denying class certification where the proposed class was a fail-safe class).  Additionally, the court in Tillman v. Hertz Corporation, 2019 WL 3231377, at *2 (N.D. Ill. July 18, 2019), granted a motion to strike class allegations because “[n]umerous contested facts peculiar to this case destroy any notion of adequacy and typicality.”

Constitutionality of damages:  In Golan v., Inc., 930 F.3d 950 (8th Cir. 2019), the Eighth Circuit weighed in on the long-debated question of whether the TCPA’s statutory damages are constitutional.  At the close of evidence after a jury trial, the district court judge granted plaintiffs’ motion for judgment as a matter of law but reduced the statutory damages of $500 per call ($1.6 billion in total) to $10 per call ($32 million in total), finding that the statutory damages were unconstitutional.  Id. at 951.  The plaintiffs appealed but the Eighth Circuit upheld the judgment as modified, finding that “$1.6 billion is ‘so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable.’”  Id. at 963.

Constitutionality of debt collection exemption:  Courts also continue to wrestle with the constitutionality of the government debt-collection exception to the TCPA.  In Duguid v. Facebook, Inc., 926 F.3d 1146, 1156 (9th Cir. 2019), the court found that the exception was unconstitutional, but “the debt-collection exception is content-based and insufficiently tailored to advance the government’s interests in protecting privacy or the public fisc.”  But the court also held that it could be severed, with the rest of the statute remaining intact.  Id.; see also Gallion v. United States, 772 Fed. Appx. 604, 605-06 (9th Cir. 2019) (rejecting challenge to constitutionality of the TCPA as a whole based on the constitutionality of the exception).

Defining cellular telephone service:  In Breda v. Cellco Partnership, 2019 WL 3808346, at *6 (1st Cir. Aug. 2, 2019), the First Circuit held that a hybrid phone service with both VoIP and cellular components constitutes a “cellular telephone service” for the purposes of the TCPA analysis.

Faxes as advertisements:  In Robert W. Mauthe, M.D., P.C. v. Optum Inc., 925 F.3d 129 (3d Cir. 2019), the Third Circuit held that faxes were not “advertisements” when they were merely sent for the purpose of confirming contact information.