Category: TCPA Class Action Litigation

By Gerald L. Maatman, Jr., Jennifer A. Riley, Anna Sheridan, and Ryan T. Garippo

Duane Morris Takeaways:  On March 20, 2026, in Bradley, et al. v. DentalPlans.com, No. 20-CV-010904, 2026 U.S. Dist. LEXIS 59569 (D. Md. Mar. 20, 2026), Judge Brandan Hurson of the U.S. District Court for District of Maryland decertified a certified class action and granted summary judgment on a named plaintiff’s Telephone Consumer Protection Act (“TCPA”) claim.  The decision is premised on the legal conclusion that the Federal Communications Commission (“FCC”) lacked the authority to interpret the TCPA’s consent provisions to require prior express written consent for telemarketing calls and continues the trend of courts which are challenging the FCC’s longstanding monopoly to interpret the statute.

Case Background

DentalPlans operates a “direct-to-consumer marketplace” that sells dental savings plans, including plans offered by Cigna.  In November 2018, Deborah Bradley called DentalPlans to enroll in a plan and the representative asked her whether the company had her consent to contact her using “automated dialing system or prerecorded message.”  Bradley, et al. v. DentalPlans.com, No. 20-CV-01094, 2024 U.S. Dist. LEXIS 10050, at *3 (D. Md. June 6, 2024).  Bradley ultimately provided such consent and signed up for a dental discount plan with Cigna.

In September 2019, however, Bradley spoke to another DentalPlans representative and told that representative that she did not want her dental plan to automatically renew.  As a result, DentalPlans started placing prerecorded calls to Bradley which informed her that “her membership was ending soon and that she could renew her plan.”  After Bradley’s plan expired, she continued to receive prerecorded calls which “attempted to ‘win back’ [her] business by encouraging her to repurchase her Cigna plan with DentalPlans.”  Id. at *5.  In total, DentalPlans placed 10 “win back” calls to Bradley prior to the filing of the action.

As a result of these calls, on April 28, 2020, Bradley filed a putative class action lawsuit under the TCPA, alleging that the calls constituted unauthorized telemarketing calls using prerecorded messages.  The crux of Bradley’s argument was that because these calls allegedly constituted “telemarketing” the applicable FCC regulations required prior express written consent, and oral consent would not suffice.  47 C.F.R. § 64.1200(a)(2).  The court agreed with Bradley’s interpretation of the regulation, granted class certification, and certified a class comprised in part of “any consumer who signed up by telephone.”  Id. at *27.  Bradley then sent notice to the class members and the parties continued to litigate the case.

DentalPlans ultimately filed a motion for reconsideration of the court’s order granting class certification.  In that motion, Dental Plans argued, inter alia, that the court’s reliance on 47 C.F.R. § 64.1200(a)(2) was misplaced following the U.S. Supreme Court’s mandate that district courts are “not bound by the FCC’s interpretation of the TCPA.”  McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025).  The parties then briefed that issue.

The Court’s Decision

In a thorough 24-page opinion, Judge Hurson walked through the proper interpretation of the phrase “prior express consent” as used in the TCPA and the scope of Congress’s delegation to the FCC.

In so doing, Judge Hurson turned to the Eleventh Circuit’s opinion in Insurance Marketing Coalition Ltd. v. FCC, 127 F.4th 303, 312 (11th Cir. 2025), which explained that the “TCPA gives the FCC only the authority to ‘reasonably define’ the TCPA’s consent-provisions” and not create a non-statutory consent regime. Judge Hurson, therefore, reasoned that because the phrase “prior express written consent” was not contained in the statute, the proper interpretation of the statute’s actual language hinged on the authority that Congress delegated to the FCC.

Similarly, Judge Hurson looked to the Fifth Circuit’s very recent decision in Bradford v. Sovereign Pest Control of Texas, Inc., 167 F.4th 809, 812 (5th Cir. 2026), which held the TCPA provides “no basis for concluding that telemarketing calls require prior express written consentbut not oral consent.”  (emphasis in original).

Based on these opinions, because the “written consent” language does not appear in the statute, Judge Hurson concluded that Congress needed to delegate the interpretation of the TCPA to the FCC for its current interpretation to stand.  But no such delegation is contained in the TCPA.  As a result, the “best interpretation” of the statute was that “express consent” is the only requirement imposed by the TCPA, even if the consent is obtained orally.

Therefore, because Bradley provided oral consent to DentalPlans receive such to prerecorded messages when she signed up for her dental plan, she (and, the class) had no viable claims.  The court, accordingly, granted summary judgment on Bradley’s individual claim and decertified the previously certified class action.

Implications For Companies

The Bradley decision continues an important trend for companies making telemarketing calls to consumers.

As we explained here, when the Fifth Circuit decided Bradford, the written consent requirement has long been thought of as one of the hallmarks of the FCC’s regulatory regime and is often used by the plaintiff’s bar to assert technical violations of the TCPA even where it is clear that a customer approved of such calls.  But the current trend shows that the underlying regulatory scheme is quickly eroding with each decision that passes.

Nevertheless, the decisions in Bradford and Bradley represent only the middle ground on these issues.  Other courts would go further and hold that Congress’s entire delegation of any of its authority “run[s] afoul of the nondelegation doctrine, since there are no delimitations on the discretion it grants the” FCC.  McGonigle v. Pure Green Franchise Corp., No. 25-CV-61164, 2026 U.S. Dist. LEXIS 8059, at *4 (S.D. Fla. Jan. 15, 2026).  Thus, the landscape of positions on such issues is wide ranging and changing by the day.

As a result of this shifting landscape, corporate counsel, and companies engaged in telemarketing, should continue to monitor this blog to stay apprised of any updates as new decisions continue to modify the FCC’s longstanding interpretation of the TCPA.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo

Duane Morris Takeaways:  On March 13, 2026, in Garvey, et al. v. Gaitan, No. 23-CV-00920, 2026 U.S. Dist. LEXIS 53447 (D. Nev. Mar. 13, 2026), Judge Andrew Gordon of the U.S. District Court for the District of Nevada certified a Telephone Consumer Protection Act (“TCPA”) class action against an individual realtor for violation of the statute’s prohibition against consentless prerecorded voice messages.  The decision serves as a cautionary tale for companies and their individual agents, particularly those entities engaged in direct-to-consumer marketing, to consult experienced TCPA counsel in connection with their marketing campaigns to limit their potential exposure.

Case Background

In 2023, Britney Gaitan, a realtor based in Las Vegas, used an online third-party service to accumulate the homeowner contact information for home sellers whose online real estate listings were either withdrawn or expired.  Gaitan then uploaded that list into a software that allowed her to send a prerecorded ringless voicemail message to the list of the home sellers she created.  As a result, on March 3, 2023, and March 16, 2023, Gaitan sent these prerecorded voice messages to everyone on her list, including Wayne Garvey, one of the homeowners.  Gaitan had no documentation that she received prior consent before placing these ringless voicemail messages.

Garvey ultimately filed suit against Gaitan alleging that she violated the TCPA’s prohibition on consentless prerecorded voice messages codified at 47 U.S.C. § 227(b)(1)(A)(iii).  Garvey also sought to maintain the case as a class action and represent the owners of the 983 unique cell phone numbers that were called 1,983 times over the course of the two days.  Put differently, Garvey ultimately asked the court to certify a class worth up to $2,974,500 or $1,500 per call.

The Court’s Ruling

On March 13, 2026, Chief Judge Andrew Gordon granted Plaintiff’s motion and certified a class against Gaitan.  Although Gaitan raised arguments in response to many of the necessary elements for a plaintiff to certify a class action, the dispute largely hinged on Rule 23’s predominance requirement — i.e., whether a common questions of law or fact predominate over issues affecting only certain individual class members.  To that end, Gaitan argued that four individualized issues would predominate.

First, Gaitan asserted that individualized inquiries were required to determine whether any class member actually listened to the voicemail.  The problem, however, is that “Gaitan cite[d] no law that states a recipient must listen to the voicemail to suffer an injury under the TCPA.”  Garvey, 2026 U.S. Dist. LEXIS 53447, at *12.  To the contrary, the Federal Communications Commission (the “FCC”) only requires that a prerecorded voicemail must be “completed” to implicate the statute, and Garvey submitted such common proof via expert testimony.  In short, the court concluded that these completed calls are “a central, common question of the class’s TCPA claims that predominates over any individualized issues.”  Id. at *15.

Second, Gaitan asserted the same argument (i.e., an individualized issue as to whether any class member listened to the call) but repurposed it under the injury-in-fact requirement of Article III of the U.S. Constitution.  For the same reason, the court concluded that because Gaitan could not cite “any law that the putative class members need to listen to the prerecorded message to be injured under the TCPA . . . they have Article III standing if Gaitan used a prerecorded voice in her ringless voicemail drops when calling their cell phones, and they need not prove any other harm.”  Id. at *18.  This argument was overruled.

Third, Gaitan asserted that there was individualized inquires as to whether any given class member consented to receive prerecorded voice messages.  As the court aptly observed, Gaitan “indicated that she has no documentation showing that she obtained consent from any putative class members.”  Id. at *19.  Gaitan tried to point to the terms of the multiple listing service (“MLS”), which supposedly require a homeowner to provide his or her phone number to create a listing, and argued this action constitutes consent to receive such calls.  Although the court was unconvinced, it correctly observed that the consent defense would apply to the entire class and thus “Gaitan has not provided evidence that determining whether some MLS users consented to being contacted about their property is an individualized issue.”  Id. at *20.

Fourth, Gaitan asserted that individualized inquiries were required to determine whether any individual owner of a telephone number was a “residential telephone line” within the meaning of the TCPA.  The primary problem, however, is that residential telephone subscriber status is not an element of a claim under Section 227(b)(1)(A)(iii) unlike other sections of the TCPA.  In other words, this argument was wholly inapplicable and “does not defeat class certification.”  Id. at *21.

As a result, once the realtor’s most significant objection to class certification was overruled, it was a near forgone conclusion that a class would be certified and thus the court proceeded to grant Garvey’s motion.

Implications For Companies

There are multiple cautionary messages embedded in Gaitan for those engaged in direct-to-consumer marketing.  The most salient three takeaways are listed below.

The first (and, most important) lesson of Gaitan is to obtain “express consent” prior to making calls using an artificial or prerecorded voice message.  47 U.S.C. § 227(b)(1)(A).  It can be difficult to defend a TCPA class action without a consent defense and Gaitan is no different.

The second lesson is that TCPA liability does not only attach to companies but may also be applied “to any person within the United States” who makes such calls.  Id.  Here, Britney Gaitan is the sole defendant facing TCPA liability and thus Gaitan’s personal assets are likely on the line for any resulting judgment.  But that is not the end of the story.  Many similar agencies have indemnification agreements with their agents, which require the agency to pay for the liabilities incurred by the agent.  To the extent such an agreement exists here, both Gaitan and her agency may have exposure for this TCPA liability. 

The third lesson is to ensure that any TCPA defense strategy is prophylactic in nature and crafted in collaboration with defense counsel well versed in this space.  In this case, Gaitan raised arguments based on wholly inapplicable portions of the statute or asserted defenses with little chance of success given the facts of the dispute.  If Gaitan consulted with experienced defense counsel in advance of the calls, then this situation could have been avoided.  But once the calls are made, the best course of action is for a TCPA defendant to contact experienced defense counsel to help navigate any resulting class actions.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo

Duane Morris Takeaways:  On February 25, 2026, in Bradford v. Sovereign Pest Control of Texas Inc., No. 24-20379, 2026 WL 520620, at *2 (5th Cir. Feb. 25, 2026), the Fifth Circuit held that the Federal Communications Commission (the “FCC”) lacked the statutory authority under the Telephone Consumer Protection Act (the “TCPA”) to require prior express written consent for all telemarketing calls using a prerecorded voice.  This decision reverses decades of precedent requiring written consent for such calls and green lights a path to future challenges to the TCPA’s implementing regulations.

Case Background

In 2023, Radley Bradford agreed to a contract with Sovereign Pest for pest control services.  When Bradford executed that agreement, he orally provided his phone number to Sovereign Pest.  As a result, Sovereign Pest called him on that telephone number several times to schedule renewal inspections and Bradford agreed to those renewals.  By every account, it was a normal business relationship.

But there was one wrinkle.  Sovereign Pest did not call Bradford using one of its live employees.  Instead, it used a prerecorded voice.  Prerecorded voice calls always implicate the TCPA and its draconian statutory damages.  As a result, Bradford ultimately sued Sovereign Pest in a federal class action lawsuit claiming the call constituted telemarketing.  Thus, because Sovereign Pest did not have “prior express written consent” to contact him using a prerecorded voice, Bradford claimed he was entitled to damages in the amount of $1,500 per call for the 24 calls it made to him.  In other words, Bradford claimed Sovereign Pest owed him $36,000 in statutory damages and millions of dollars more to the putative class.

The only problem for Bradford was that the TCPA does not contain the term “prior express written consent.”  It only refers to “prior express consent.”  So, Bradford sought to rely on FCC regulations that have long required written consent to make telemarketing calls using a prerecorded voice.  Bradford claimed that Sovereign Pests calls constituted such telemarketing.  The district court disagreed with Bradford, granting a motion for summary judgment filed by Sovereign Pest, and held that the calls did not constitute telemarketing as a matter of law.  Bradford appealed.

The Fifth Circuit’s Ruling

Judge Jennifer Elrod, writing for the U.S. Court of Appeals for the Fifth Circuit, affirmed the judgment entered by the district court, but not for the reasons one might think.  Rather than dive into whether or not the calls constitute telemarketing, the Fifth Circuit held that the distinction was irrelevant.  It explained that although “[t]he regulation relevant to this case mostly tracks the statute” it adds an additional prohibition of “written consent for pre-recorded telemarketing calls.”  Bradford, 2026 WL 520620, at *2.  The FCC, however, did not have the authority to add that language to the statute.

In years past, courts may have deferred to the FCC’s interpretation of the TCPA.  In 2025, however, the U.S. Supreme Court unequivocally held that district courts are “not bound by the FCC’s interpretation of the TCPA” and that courts are required to interpret the text of the statute for themselves.  McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 168 (2025).  Thus, because the plain language of the TCPA does not impose an additional requirement of written consent for telemarketing calls, the Fifth Circuit concluded that it was outside the scope of the FCC’s regulatory authority to require such consent.   As a result, the Fifth Circuit affirmed the judgement entered below.

Implications For Companies

The implications of Bradford cannot be understated. 

The FCC’s imposition of a bright line rule requiring written consent for prerecorded telemarketing calls is one of the hallmarks of the statute’s regulatory regime.  It is also a frequent tool used by the plaintiff’s bar to assert technical violations of the TCPA where it is clear by the context that a customer approved of such calls.  In the wake of McKesson, however, the FCC’s regulations now fall by the wayside for district courts in Louisiana, Mississippi, and Texas.  Companies operating in those states will now be able to rely on oral agreements with their customers to prove the existence of prior consent.

The Bradford decision is not alone.  Some district courts have even suggested Congress’s delegation of any authority to the FCC “may run afoul of the nondelegation doctrine, since there are no delimitations on the discretion it grants the Commission.”  McGonigle v. Pure Green Franchise Corp., No. 25-CV-61164, 2026 WL 111338, at *2 (S.D. Fla. Jan. 15, 2026).  Although Bradford does not go that far, the decision represents unmistakable pushback on the FCC’s longstanding unchecked power to interpret the TCPA.

Of course, the standards are still far from clear as the Fifth Circuit is the only federal appellate court to have endorsed this approach.  This decision continues the trend which has started to create a “patchwork” approach to the TCPA’s standards and complicates compliance for companies making calls nationwide.  Thus, corporate counsel should continue to monitor this blog to stay on top of these varying decisions and contact experienced counsel if their organizations are facing TCPA related threats as the resulting liability can be ruinous.

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaway: The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., has long been a focus of class action litigation. Since the TCPA was enacted 30 years ago, the methods and technology that businesses use to engage and interact with customers has evolved and changed. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come.

To that end, the class action team at Duane Morris is pleased to present the 2026 edition of the TCPA Class Action Review. We hope it will demystify some of the complexities of TCPA class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues.  We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with TCPA class action litigation.

Click here to bookmark or download a copy of the TCPA Class Action Review – 2026 e-book.

Stay tuned for more TCPA class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

By Gerald L. Maatman, Jr., Shannon Noelle, and Ryan Garippo

Duane Morris Takeaways:  In a recent opinion in Fischbein v. IQVIA Inc., Case No. 19-CV-5365 (E.D. Pa. June 5, 2025), Judge Nitza I. Quiñones of the U.S. District Court for the Eastern District of Pennsylvania denied class certification of a proposed class of healthcare professionals that allegedly received unsolicited fax advertisements in violation of the Telephone Consumer Protect Act (“TCPA”). The Court determined that the TCPA only prohibits receipt of unsolicited ads on a “a traditional stand-alone fax machine” (as opposed to modern online faxing) and plaintiffs did not demonstrate that common evidence existed showing all class members received the alleged ads at issue through a traditional fax machine as opposed to through an online transmission.   As a result, the Court found that plaintiffs did not satisfy the required ascertainability and predominance elements of class certification.

Background

The proposed class in Fischbein v. IQVIA Inc. consisted of more than 25,000 healthcare providers that allegedly received unsolicited fax advertisements from Defendant IQVIA Inc., a company that provides advanced analytics, technology solutions, and clinical research services to the life sciences industry.  The class complaint contended that certain faxes for surveys administered by IQVIA were allegedly sent in violation of the TCPA which makes it “unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone or facsimile machine, an unsolicited advertisement.”  Id. at 3.

The Court’s Decision

Parsing the plain language of the statute and interpretive case law in the Fourth Circuit, the District Court agreed with the Fourth Circuit finding that the statute was designed to only protect plaintiffs that received advertisements on stand-alone fax machines, rather than through online fax services.  The statute states in relevant part that it is unlawful to “use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.”  See 47 U.S.C. § 227(b)(1)(C) (emphasis added).  The statute further defines “telephone facsimile machine” as “equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.”   See ECF No. 119, at 8 (citing § 227(a)(3) (emphasis added)).  Plaintiffs submitted the testimony of an expert who opined that the phrase “regular telephone line” would include transmissions made by online services so long as it was regulated by the North American Numbering Plan Administrator.  Id. at 8-9.  But the Court found that this interpretation would “render superfluous” the word “regular” used as a modifier of “telephone line” in the statute.  Id. at 9.  In fact, the expert’s testimony contradicted his expert opinion as he conceded that “regular telephone line” means an “analog telephone line.”  Id.  The Court also noted that plaintiffs presented no evidence nor did they make any arguments that an online fax service has the ability on its own to either transcribe text or images “from paper” or “onto paper” as stated in the statute, further undermining plaintiffs’ argument that the statute was meant to include online fax transmissions.  Id. at 10.   Indeed, Plaintiffs’ expert conceded that such online fax services have the “capacity” to do this type of transcription only when connected to other devices like scanners or printers.  Id. at 10.  The Court acknowledged that its statutory interpretation was also supported by the Federal Communications Commission’s (“FCC”) declaratory ruling in In the Matter of Amerifactors Fin. Grp., LLC, 34 F.C.C. Rcd. 11950 (2019). 

Applying this statutory interpretation, the Court found that the proposed class was not adequately ascertainable as plaintiffs could not point to common evidence to show that proposed class members received unsolicited ads through a stand-alone fax machine as opposed to an online service provider.  Plaintiffs suggested that they could submit declarations from class members to ascertain that they fell under the scope of the class of plaintiffs the statute was designed to protect, but the Court found that declarations from potential class members “standing alone, without records to identify class members or a method to weed out unreliable affidavits” would not constitute a reliable or feasible means of determining class membership.  See ECF No. 119, at 15 (internal citation and quotations omitted).

For similar reasons, the Court also found that the predominance element of class certification was not met as individual questions of whether the faxes at issue were received on a stand-alone fax machine or by way of an online fax service would predominate over questions common to the proposed class. 

On June 20, 2025, plaintiffs filed a motion for reconsideration of the order denying class certification or, in the alternative, to certify a more narrowly-defined class (i.e. asking the Court to narrow the class definition to exclude people who used online fax services).  This motion is pending before the Court.

Implications for TCPA Defendants

The Fischbein decision provides important points of attack for the defense bar on ascertainability and predominance grounds for TCPA classes by underscoring the importance of parsing class definitions in the TCPA context to ensure the modality of transmission of the alleged unsolicited advertisement can be determined on a class-wide basis and is limited to traditional fax machine communications.  

By Gerald L. Maatman, Jr., Jennifer A. Riley, Emilee Crowther, and Zachary J. McCormack

Duane Morris Takeaways: In Drazen v. Pinto, No. 21-10199, 2024 U.S. App. 2024 LEXIS 11590 (11th Cir. May 13, 2024), the Eleventh Circuit vacated a district court’s final approval of a settlement of a class action alleging GoDaddy, Inc. violated the Telephone Consumer Protection Act (“TCPA”) by sending unwanted marketing texts and phone calls through a prohibited automatic telephone dialing system (“ATDS”). The Eleventh Circuit held the district court abused its discretion by approving the class-wide settlement, which would have provided up to $35 million to pay class members’ claims and up to $10.5 million to class counsel in attorneys’ fees. The Eleventh Circuit opined that the district court erred by overlooking evidence of collusion between class counsel and GoDaddy’s attorneys.

The Eleventh Circuit concluded that the district court inappropriately certified the class, and should not have approved the proposed settlement agreement and granted class counsel’s motion for attorneys’ fees. In doing so, the district court overlooked evidence of collusion between class counsel and GoDaddy’s attorneys, treated the settlement as a common fund instead of a claims-made resulution, and improperly calculated attorney fees after erroneously concluding it was not a coupon settlement. The Eleventh Circuit remanded the case back to the district court for further proceedings.

The Eleventh Circuit’s 123-page opinion offers a treasure trove of insights regarding the need for constant vigilance when it comes to TCPA compliance — particularly for employers involved in these types of class actions.

Case Background

GoDaddy, Inc., a publicly traded multi-billion-dollar U.S. corporation, provides services – including domain registration, website hosting, payment processing, and marketing support – to entrepreneurs around the globe. Id. at *2. The Drazen litigation consisted of three consolidated TCPA class action lawsuits brought against GoDaddy alleging the company sent unwanted marketing texts and phone calls through ATDS. Id. at *13. The parties eventually negotiated a settlement agreement where GoDaddy would provide up to $35 million to pay class members’ claims and up to $10.5 million to class counsel in attorneys’ fees. Id. at *41. The plaintiffs moved the district court to certify a Rule 23(b)(3) class for settlement purposes, to preliminarily approve the negotiated settlement agreement, and to approve the draft notice of proposed settlement to class members. Id. at *21. The district court granted preliminary approval of the settlement and directed that notice of the proposed settlement be given to the class. Id. at *22.

Shortly after counsel emailed the notice to the class, the Supreme Court granted certiorari in Facebook, Inc. v. Duguid, 592 U.S. 395, 401-02 (2021), which took up the same principal issue in the plaintiffs’ consolidated actions: whether a device must have certain capabilities to constitute an auto dialer under the TCPA. Class counsel, anticipating an impending Supreme Court ruling in Facebook that could impact a settlement, urged the district court to enter a final judgment approving the settlement and grant its attorneys’ fees motion. Id. at *7.

The district court granted class counsel’s motion over the objection of Juan Pinto, an individual class member, who argued (i) the district court prematurely ruled on attorneys’ fees before the deadline for objections, and (ii) the fees awarded were far in excess of what class members would receive, making the settlement unfair, unreasonable, and inadequate. Id. at *8. Over the objections of this individual class member, the district court approved the settlement, and Juan Pinto appealed. Id. at *9.

The Eleventh Circuit’s Decision

The Eleventh Circuit concluded the district court abused its discretion in approving the class-wide settlement agreement. Among other oversight, the district court failed to account for the 2018 amendments to Rule 23(e)(2), it overlooked evidence indicating that the settlement agreement was the product of collusion, and that the notice of the proposed settlement failed to inform the absent class members of the claims, issues, or defenses in plaintiff’s cases as required by Rule 23(c)(2)(B)(iii), fundamental due process, and the district court’s fiduciary obligation to the absent class members. Id. at *9. The Eleventh Circuit highlighted various errors committed by the district court in its 123-page opinion, but focused primarily on three areas.

First, the Eleventh Circuit concluded that it was improper for the district court to determine the settlement as fair, reasonable, and adequate without considering Rule 23(e)(2)(A). Id. at *59. The district court also overlooked evidence indicating that the settlement agreement was the product of collusion, such as the overbroad, sweeping release provision and inadequate relief provided to the class relative to what class counsel and GoDaddy received. Id. at *60. Rule 23 and due process require that, in finalizing a class settlement, the parties and the district court must give absent class members a meaningful opportunity to opt-out or challenge the class settlement. Id. at * 66.

Second, the Eleventh Circuit determined that the notice of the proposed settlement failed to inform the absent class members of the “claims, issues, or defenses” in the plaintiffs’ cases as required by Rule 23(c)(2)(B)(iii), fundamental due process, and the district court’s fiduciary obligation to the absent class members. Id. at *71. The Eleventh Circuit adopted the interpretation of Rule 23(c)(2)(B)(iii) as “conjunctive”, and that class members must be informed not only of the claims asserted, but also of the dispositive issue in Facebook and how its decision would affect the case. Id. at *77. The Eleventh Circuit’s opinion further suggested that additional notice should have been provided regarding this development.

Third, the Eleventh Circuit found that the district court erred in three ways when it calculated attorney’s fees considering it: (1) misapplied Rule 23(h), (2) treated the settlement as a common fund when it was claims-made, and (3) determined that this was not a settlement involving coupons under the Class Action Fairness Act (“CAFA”) and thus declined to examine class counsel’s motion for attorney’s fees with CAFA-mandated scrutiny and procedures. Id. at *9. First, the district court failed to give absent class members advance notice of class counsel’s fee motion, which disregarded the manifest intent of Rule 23(h). Id. at *79. The schedule proposed by the parties and adopted by the district court provided class members with only 7 days to review the attorney’s fees motion before the objection deadline, and the notice did not specify when that motion would be filed, which the Eleventh Circuit strongly criticized. Id. at *80. Second, although labeled a “common fund,” the settlement really involved a “claims made” structure where class counsel may recover the full amount of the attorneys’ fees sought; the class members, however, recover only if they submit claims. Id. at *79. Finally, the district court declined to apply class CAFA-mandated scrutiny and procedures, which was an error as the settlement allowed the class members to choose a cash award instead of a voucher. Id. at *89.

For these reasons, the Eleventh Circuit vacated the judgment, and remanded to the district court for further proceedings.

Implications Of The Decision

The Eleventh Circuit’s opinion depicts the latest legal developments in the constantly changing TCPA landscape, and the need to structure class settlement agreements in a way that obtains peace and withstands judicial scrutiny. In an effort to avoid expensive repercussions, employers and corporate counsel must exercise caution when drafting settlement documents in class-wide resolutions. Corporate counsel should take note of the dangers of the TCPA, as well as the potential pitfalls in faulty class action settlement agreements, and continue to monitor this space for future developments.

 

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley and associate Derek Franklin with their discussion of 2023 developments and trends in TCPA class action litigation as detailed in the recently published Duane Morris TCPA Class Action Review – 2024.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Google Podcasts, the Samsung Podcasts app, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, YouTube or our RSS feed.

Episode Transcript

Jennifer Riley: Welcome to our listeners! Thank you for being here for our weekly podcast, the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today is associate Derek Franklin. Thank you for being on the podcast.

Derek: Thank you Jen! Happy to be part of the podcast.

Jen: Today on the podcast we are discussing the recent publication of the inaugural edition of the Duane Morris Telephone Consumer Protection Act (or TCPA) Class Action Review. Listeners can find the eBook publication on our blog, the Duane Morris Class Action Defense blog. Derek, can you tell listeners a bit about the publication?

Derek: Absolutely Jen. The TCPA has long been a focus of litigation, particularly for class actions. To that end, the class action team at Duane Morris is pleased to present the TCPA Class Action Review – 2024. This publication analyzes the key TCPA-related rulings and developments in 2023 and the significant legal decisions and trends impacting this type of class action litigation for 2024. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.

Jen: In 2023, courts across the country issued a mixed bag of results leading to major victories for both plaintiffs and defendants. Derek, how often were classes certified in TCPA actions in 2023?

Derek: There were wins on both sides, but the plaintiffs’ bar came away ahead in terms of getting classes certified. Courts granted motions for class certification nearly 70% of the time, and denied class certification motions only 30% of the time in 2023.

Jen: Interesting and a fairly high certification rate for these cases. Another notable legal issue that courts grappled with in the context of the TCPA during 2023 is the threshold for what can constitute a concrete injury for purpose of having Article III standing to bring a viable claim. Were there any notable rulings in 2023 that discussed Article III standing?

Derek: Yes Jen, there were several rulings that discussed these very issues in the TCPA Class Action Review. In Drazen, et al. v. Pinto, for example, the Eleventh Circuit ultimately concluded that a single unwanted text message may not “be highly offensive to the ordinary reasonable man,” but it was nonetheless offensive to some degree to a reasonable person. The Eleventh Circuit ruled that the harm of receiving one text message shared a close relationship with the harm underlying the tort of intrusion upon seclusion, and thus, receipt of an unwanted text message causes a concrete injury sufficient to confer Article III standing.

Jen: Thanks so much Derek, I anticipate that these standing questions will remain hotly debated in the courts in 2024. The Review also talks about the top TCPA settlements in 2023. How did plaintiffs do in securing settlement funds last year?

Derek: Plaintiffs did very well in securing high dollar settlements in 2023. The top 10 TCPA class action settlements totaled $103.45 million.

Jen: We will continue to track those settlement numbers in 2024, as record-breaking settlement amounts have been a huge trend we have tracked the last two years. Thanks Derek for being here today, and thank you to the loyal listeners for tuning in! Listeners please stop by the blog for a free copy of the TCPA Class Action Review e-book!

Derek: Thanks for having me Jen and thanks to all the listeners!

By Gerald L. Maatman, Jr., Jennifer A. Riley, Emilee Crowther, and Ryan Garippo

Duane Morris Takeaway: The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., has long been a focus of consumer litigation, particularly for class actions. Since the TCPA was enacted 30 years ago, the methods and technology that businesses use to engage and interact with customers has evolved and changed. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come.

To that end, the class action team at Duane Morris is pleased to present a new publication – the 2024 edition of the TCPA Class Action Review. We hope it will demystify some of the complexities of TCPA class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues.  We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with TCPA class action litigation.

Click here to download a copy of the Duane Morris TCPA Class Action Review – 2024 eBook.

Stay tuned for more TCPA class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaways: On June 30, 2023, in Kristen Hall v. Smosh Dot Com, Inc., DBA Smosh, et al., No. 22-16216 (9th Cir. June 30, 2023), the Ninth Circuit reversed the district court’s dismissal for lack of Article III standing of a class action under the Telephone Consumer Protection Act (the “TCPA”) and remanded the claim for further proceedings.  In doing so, the Ninth Circuit held that the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry suffers an injury in fact when unsolicited telemarking calls or texts are sent to the number even if the communications are intended for or solicited by another individual or someone else is using the phone at the time the messages are transmitted.  In so holding, the Ninth Circuit established that the receipt of unsolicited phone calls or text messages in violation of the TCPA is a “concrete injury in fact sufficient to confer Article III standing” even if the individual bringing the claim was not the phone’s primary user.  As a result, the ruling is required reading for any corporate counsel dealing with TCPA class action litigation.

Case Background

Plaintiff Kristen Hall, a resident of Willis, Texas, was in possession of a cellular phone that was used primarily for residential purposes and, at times, provided to her 13-year old son to use in his free time.  Hall, No. 22-16216, at 5-6.  Plaintiff placed this number on the National Do-Not-Call Registry in order to avoid invasive and irritating solicitation calls and to protect her son from any potential threats.  Id.  Plaintiff alleged that she was the owner and subscriber of the cell phone at issue and that she listed its number on the Do-Not-Call Registry.  Id. at 9.

On or around November 3, 2019, Defendants – who are digital content creators producing “sketch comedy” for an adolescent audience and selling merchandise that relates to their digital content – obtained the personal information for Plaintiff’s son and sent him at least five text messages between December 25, 2019, and June 29, 2020.  Id.  These texts specifically solicited business and offered discounts on products offered by Defendant Smosh Dot Com, Inc., which Plaintiff alleged was “irritating, exploitative, and invasive” and “precisely the type of communications she sought to avoid when she registered her number on the Do Not Call [R]egistry.”  Id.  Plaintiff’s First Amended Complaint alleged that Defendants violated § 227(c) of the Telephone Consumer Protection Act (“TCPA”) by sending text messages to numbers listed on the National Do-Not-Call Registry.  Id. 

Defendants moved to dismiss the First Amended Complaint for failure to state a claim and for lack of standing. They argued that Plaintiff lacked Article III standing because she failed to plead that she was the user of the phone or actually received any of the soliciting text messages from Defendants.  Id. at 6-7.  Specifically, Defendants argued that because she provided the phone to her son, Plaintiff was not the actual user of the phone or the actual recipient of the messages and, therefore, did not suffer an injury and was instead attempting to assert the legal right of a third party.  Id. at 9-10.  The district court granted the motion to dismiss on the basis that Plaintiff did not have Article III standing merely because she was the subscriber/owner of the phone while not addressing any of the merits issues.  Id. at 7.  Plaintiff appealed this ruling.  Id.

The Ninth Circuit’s Ruling

The Ninth Circuit reversed the district court’s ruling.

It held that Plaintiff had Article III standing to bring the claims under the TCPA.  The Ninth Circuit noted that it was well established that unsolicited telemarketing phone calls or text messages in violation of the TCPA is a concrete injury in fact that, itself, is enough to confer Article III standing. It cited to Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (holding that “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients).  Id. at 8.  Importantly, the Ninth Circuit made clear that the relevant question for Article III standing is whether Plaintiff suffered a cognizable injury.  Id. at 12.  The Ninth Circuit reasoned that because a violation of the TCPA is a “concrete injury,” and the Do-Not-Call provisions of the TCPA proscribe unsolicited calls and text messages to phone numbers on the Do-Not-Call Registry, Plaintiff’s allegations that she received unsolicited text messages on a number on the registry were sufficient to confer standing.  Id.

To reach this holding, the Ninth Circuit found no precedent that the owner of a cell phone also must be the primary or customary user to be injured by unsolicited phone calls or text messages.  Id. at 13.  The Ninth Circuit reasoned that requiring a certain level of phone usage to be a prerequisite for standing would go against Congress’ intention of preventing individuals on the Do-Not-Call Registry from receiving unsolicited text messages.  Id.  The Ninth Circuit also opined that this holding would not prevent other users of the phone from bringing claims, as they may also suffer a concrete injury from an unwanted call or text message.  Id.

Importantly, the Ninth Circuit did not address the merits of Plaintiff’s claim, and refused to discuss Defendants’ contention that Plaintiff’s son solicited the text messages by signing up for telecommunications through an online form.  Id.  Instead, the Ninth Circuit held that, even if Plaintiff’s son solicited the messages, therefore affecting the merits of her claim, Plaintiff still had standing to bring her own claim by the virtue of her status as the subscriber and owner of the phone.  Id. at 14.  The Ninth Circuit additionally did not address the question of whether a subscriber would have Article III standing to litigate a TCPA claim if he or she authorized a third-party user to provide consent to a telemarketer, leaving that question open for the district court to discuss on remand.  Id. at 9.

Key Takeaways

The Ninth Circuit has now established that all that is required for Article III standing under the TCPA is the receipt of unsolicited text messages or phone calls to a number owned or subscribed to by an individual and found on the Do-Not-Call Registry, even if that individual is not the primary user of the phone.

This ruling curtails attacks on the pleadings by TCPA defendants, especially with the language included by the Ninth Circuit that standing is “not exclusive” and numerous subscribers/users can bring TCPA claims.  However, with the Ninth Circuit leaving open the question of whether a subscriber would have standing if he or she authorized a third-party user to provide consent to receive telemarketing, companies defending TCPA claims still may have a path forward to attacking standing for subscribers of phones on the Do-Not-Call Registry with third-party users.  Until then, companies should be cognizant that even if a phone user solicited communications by signing up for those communications, the phone subscriber will still have standing to bring a claim under the TCPA.