Duane Morris TCPA Class Action Review – 2024

Class action litigation in the consumer fraud area has exponentially increased over the past several years. Most consumer fraud class actions come with the possibility of excessive payouts for corporations. We hope the Duane Morris Consumer Fraud Class Action Review – 2023 will demystify some of the complexities of consumer fraud class action litigation through our analysis of trends and significant rulings that enable corporate counsel to make informed decisions in dealing with complex litigation risks.

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

CITATION FORMATS All citations in the Duane Morris TCPA Class Action Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Baysal, et al. v. Midvale Indemnity Co., 78 F.4th 976 (7th Cir. 2023). If the decision is not available in the preferred format, a Lexis cite from the electronic database is provided, such as Moehrl, et al. v. National Association of Realtors, 2023 U.S. Dist. LEXIS 53299 (N.D. Ill. Mar. 29, 2023). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Yates, et al. v. Traeger Pellet Grills , Case No. 19-CV-723 (D. Utah Sept. 7, 2023). eBOOK HIGHLIGHTS The Duane Morris Class Action Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any eBook reader application. eBook reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The eBook is designed for easy navigation and quick access to informative data. The eBook is available by scanning the below QR code:

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Duane Morris TCPA Class Action Review – 2024

NOTE FROM THE EDITORS The stakes at issue in class action litigation are typically significant and are apt to keep corporate counsel and senior management up at night. A company ’ s market share and corporate reputation are often implicated by a class action and these exposures and risks put immense pressure on corporate decision- makers. The purpose of the Duane Morris TCPA Class Action Review is multi-faceted. 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 Rule 23 issues. In this respect, we hope this book will provide our clients with an analysis of trends and significant rulings that enable them to make informed decisions in dealing with complex litigation risks. Defense of class actions is a hallmark of the litigation practice at Duane Morris. 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.

Sincerely,

Duane Morris TCPA Class Action Review – 2024

CONTRIBUTORS

Duane Morris TCPA Class Action Review – 2024

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must by ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. In federal courts, the process is governed by Rule 23 of the Federal Rules of Civil Procedure. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit. Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action. Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show

Duane Morris TCPA Class Action Review – 2024

that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

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Duane Morris TCPA Class Action Review – 2024

TABLE OF CONTENTS

Page I. Introduction .............................................................................................................. 1 II. What Should Companies Expect In 2024?............................................................. 2 TCPA Class Actions............................................................................................................. 4 I. Executive Summary ................................................................................................. 4 II. Significant Rulings In TCPA Class Actions ........................................................... 6 1. Rulings Granting Class Certification ................................................................ 6 2. Rulings Denying Class Certification................................................................. 7 3. Issues With Article III Standing In TCPA Class Actions.................................. 9 4. Preemptive Motions To Strike And Dismiss TCPA Class Action Claims .... 11 5. Rulings On Summary Judgement In TCPA Class Actions Without Deciding Class Certification ............................................................................ 12 6. Rulings Affirming Dismissal For Failure To State A Viable TCPA Claim..... 12 7. Rulings Denying Motions To Dismiss TCPA Class Actions For Failure To State A Claim .................................................................................................... 14 8. Appellate Decisions Reversing Dismissal Of TCPA Claims ......................... 14 9. Appellate Decisions Affirming Dismissal Of TCPA Claims........................... 15 10.Decisions As To Notice In TCPA Class Actions............................................. 16 III. Top TCPA Class Action Settlements In 2023 ................................................. 17 Table Of 2023 TCPA Class Action Litigation Rulings ..................................................... 19

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I. Introduction Class action litigation presents one of the most significant risks to corporate defendants today. Procedural mechanisms like the one set forth in Rule 23 of the Federal Rules of Civil Procedure have the potential to expand a claim asserted on behalf of a single person into a claim asserted on behalf of a behemoth that includes every employee, customer, or user of a particular company, product, or service, over an extended period. A class action allows one or more individuals to pursue claims on behalf of a defined and sometimes sprawling group of similarly situated individuals. When the plaintiffs’ bar aggregates the claims of many individuals in a single lawsuit, a class action can present substantial implications for a corporate defendant. As a result, class action litigation poses some of the most significant legal risks that companies face. By joining the claims of many individuals in a single lawsuit, class actions have the potential to increase potential damages exponentially. A negative ruling in a class action has the potential to reshape a defendant’s business model, to impact future cases, as well as to set guidelines for the entire industry. This can make the outcome of a class action lawsuit significant and potentially devastating for a company. Due to their potential implications, class actions are often costly to defend. Defending against a class action can be a time-consuming and resource-intensive process that diverts management attention from core business activities. Plaintiffs can attempt to leverage this reality to make class actions as expensive and disruptive as possible, in an effort to bring about litigation fatigue and to extract a sizable settlement. Given the potential size and impact of class actions, class actions and class action settlements inevitably attract media attention and lead to public scrutiny. Negative publicity surrounding a class action or class action settlement can have widespread implications, including potential harm to a company's reputation, potential damage to its brand, and potential drop in consumer trust. It sometimes spells the end of the career of a general counsel or chief executive officer if the problems at the heart of the lawsuit happened on their watch. Class actions are often complex legal proceedings with uncertain outcomes. The complexity can arise from managing multiple claims, myriad legal issues, and assorted class members, making it challenging for corporate defendants to predict and control the result. Due to these factors, corporate defendants should approach class actions from a broad vantage point with a thoughtful and multi-faceted defense strategy. We developed this one-of-a-kind resource to provide a practical desk reference for corporate counsel faced with defending class action litigation. We have organized this year’s book into 23 chapters, with five appendices, each of which provides a rundown of the trends in a particular area of class action litigation, along with the key decisions from courts across the country that companies can use to shape their defense strategies. This chapter offers an overview of 2023 in terms of the most significant trends and developments that shaped the class action landscape. We identified 10 key trends that characterize the past year. These trends involve: (i) the continued prevalence of massive class action settlements; (ii) expansive growth in privacy class action litigation; (iii) plaintiff-friendly class certification conversion rates; (iv) an expansive growth of data breach litigation; (v) decisions by the U.S. Supreme Court fueling class action litigation; (vi) transformative rulings on the PAGA front, bolstering its popularity among the plaintiffs’ class action bar; (vii) a resurgence of broader and more aggressive government enforcement activity; (viii) the emergence of generative artificial intelligence (AI) and its potential to reshape class action litigation; (ix) a new focus on ESG-related class action risks; and (x) the continued impact of the arbitration defense in the class action space.

Duane Morris TCPA Class Action Review – 2024

II. What Should Companies Expect In 2024? Class action litigation is a staple of the American judicial system. The volume of class action filings has increased each year for the past decade, and 2024 is likely to follow that trend. In this environment, corporate programs designed to ensure compliance with existing laws and strategies to mitigate class action litigation risks are corporate imperatives. The plaintiffs’ bar is nothing if not innovative and resourceful. Given the massive class action settlement figures in 2022 and 2023 (a combined total of $113 billion), coupled with the ever-developing law, corporations can expect more lawsuits, expansive class theories, and an equally if not more aggressive plaintiffs’ bar in 2024. These conditions necessitate planning, preparation, and decision-making to position corporations to withstand and defend class action exposures. Defendants often have very little time to react to the plaintiff’s forum choice after a class action is filed, even though it may be one of the most important initial questions in the case. In turn, a cascading number of strategic considerations are typically faced by corporate decision-makers upon receipt of the class action filing. Should the company opt to remove the case from state court to federal court (and are there grounds to do so under the Class Action Fairness Act of 2005)? Is it better to have a federal judge who has the time and expertise to fully vet the parties’ briefs and arguments and likely will apply a more rigorous evidentiary standard to expert testimony and class certification requirements? However, will removing the case cause other plaintiff’s counsel to track the litigation and lead to more sophisticated counsel becoming involved or more “tag-along” class action filings? Will removing the case make settlement more difficult and potentially affect the structure of the settlement as well as its costs and the exposure in the class action? How will standing issues play out in each forum, and is standing a viable defense to gut the basis of the class theories? Can jurisdictional defenses fracture the class action by invoking Bristol-Myers Squibb ? Does the company have an arbitration agreement with employees, consumers, or third-parties that would support a motion to compel arbitration of the claims in the lawsuit on an individual, bilateral basis? Is the potential of a motion to transfer the case to an MDL after removal good or bad for the ultimate defense and handling of the litigation? What are the steps for a full and complete early case assessment, and is the company’s relevant electronically-stored information (ESI) available, assessable, and in a format that can be easily and quickly analyzed? Are there ways to resolve the individual complaint, either before filing responsive pleadings or by way of negotiation with plaintiffs’ counsel? Could early concessions or a voluntary change to a challenged practice moot the litigation, or lead to an argument by plaintiff’s counsel that they are entitled to attorneys’ fees if corporate changes are made? Once the parties are at issue in the litigation, another series of strategic decisions needs to be confronted. Should the company request a stay of discovery while the court is considering a motion to dismiss? Should the defendant agree to broader discovery in the hope of demonstrating the presence of individualized issues to set up its class certification defenses? How broadly should discovery be drafted and what type of agreement on ESI is appropriate? Can the defendant make predominance arguments regarding varying facts without allowing broad discovery on those facts? Is bifurcation of discovery between merits issues and class issues still a viable option after Rule 23 case law has made clear that merits issues can overlap with the elements of class certification? Are communications allowed with class members before and/or after certification and on what terms? Is the list of class members discoverable? Is discovery allowed from absent class members and, if so, in what forms? Can and should a corporate defendant move for summary judgment before class certification (as to the named plaintiffs’ claims individually or as to all class claims)? Are there advantages even if the motion will not win the case (for instance, narrowing the case, causing the plaintiff to respond in an individualized way, etc.)? As to the future opposition to the plaintiffs’ motion for class certification, can the class definition be attacked because it includes uninjured class members? Further, it is rare that a motion for class certification is filed without an accompanying expert witness report. Likewise, virtually every opposition brief uses expert

Duane Morris TCPA Class Action Review – 2024

testimony. When should a defense expert be retained, on what subjects, and how should they plan their support of the defense efforts to block class certification? The competing expert testimony typically centers on whether the claims can be proven with common evidence although they can be used for many other purposes (e.g., numerosity, feasibility of notice, merits issues, etc.). Daubert motions, which test the admissibility of expert testimony, are an essential part of almost every class certification battle, and the U.S. Supreme Court has focused on expert testimony in several of its recent class certification decisions. Does the court apply the same Daubert standard at class certification as it does before trial? Does the expert rely upon admissible evidence? Does the testimony “fit” the legal theory and claims? Would the testimony be admissible in an ordinary single plaintiff case? Should the plaintiff or defendant hire a consulting expert to assist in litigating the case? How can an expert use sampling to support claims of class-wide liability or impact? Finally, corporations must consider settlement from the very beginning of a class action and the desire for a final global resolution can drive decision-making in terms of overall defense strategies. Defendants may decide not to remove or compel arbitration; plaintiffs may avoid issuing press releases to avoid copycat cases. Settlement on a class-wide basis pose myriad strategic issues. When the defense has decided to settle, a corporation will normally want the most expansive class definition and the broadest release, even though it has vociferously opposed any certification earlier in the case. When the terms of a settlement are finally hammered out, the plaintiff’s lawyers and defense counsel share a common goal of obtaining approval and will then join forces to this end and against any objectors who oppose the accord. These crucial questions are inevitably posed by any class action litigation. By their very nature, class actions involve decisions on strategy at every turn. The positions of the parties are constantly changing and corporate defendants must always be looking ahead and anticipating issues during every phase of the litigation. We hope the Duane Morris Telephone Consumer Protection Act Review provides practical insights into complex potential strategies relevant to all aspects of class action litigation and other claims that can cost billions of dollars and require changed business practices in order to resolve.

Duane Morris TCPA Class Action Review – 2024

TCPA Class Actions I. Executive Summary

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. For many years, the plaintiffs’ class action bar has successfully asserted TCPA causes of action based on allegations that a defendant used an automatic telephone dialing system (ATDS) to call or send messages to a cellphone without first obtaining prior express written consent. An ATDS is “equipment which has the capacity: (i) to store or produce telephone numbers to be called [or texted], using a random or sequential number generator, and (2) to dial such numbers.” 47 U.S.C. § 227(1)(A). In 2021, the U.S. Supreme Court issued its ruling in Facebook v. Duguid, et al. , 141 S. Ct. 1163 (2021), which adopted a narrow interpretation of what devices count as an ATDS. Before Duguid , some federal circuits held that equipment could qualify as an autodialer just because it autodialed stored phone numbers that had not been randomly or sequentially generated in the first instance. But the Supreme Court rejected this interpretation. It held that “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” because a contrary interpretation “would capture virtually all modern cell phones, which have the capacity to store telephone numbers to be called and dial such numbers.” Id. at 1171-73. Enacted in 1991, the TCPA is a federal statute aimed at protecting consumers from companies that use ATDS to engage in mass telemarketing methods, including robocalls. The TCPA originally focused on unwanted telephone calls and faxes. Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). The TCPA also bars a caller from making a “prerecorded” phone call to a cellphone without the called party ’ s consent. 47 U.S.C. § 227(b)(1)(A)(iii). 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. For example, text messaging is now used by businesses for many reasons, including to communicate with customers, solicit consumer feedback, announce product promotions, identify the status of a delivery, and utilize two-factor security authentication. As a result, courts have interpreted the TCPA to include text messages. See e.g ., Campbell-Ewald Co. v. Gomez, et al. , 136 S. Ct. 663, 667 (U.S. 2016). The TCPA also empowers the Federal Communications Commission (FCC) to “prescribe regulations to implement” the statute, and to create exemptions to statutory liability “by rule or order.” 47 U.S.C. § 227(b)(2)(B). Under this authority, the FCC has created a “two-tier system of consent” for TCPA liability, with different kinds of calls requiring different kinds of consent. First, prerecorded calls that do not include “telemarketing” are lawful as long as the called party has provided “prior express consent.” 47 C.F.R. § 64.1200(a)(1)-(2). Second, prerecorded calls that do include “telemarketing” require “prior express written consent.” Id. at § 64.1200(a)(2) (emphasis added). Prior express consent is a lower threshold insofar as a called party generally provides such consent simply by giving their phone number to a business in connection with a transaction. Prior express written consent, by contrast, is harder to obtain – to provide such consent, a party must sign a written agreement that “clearly authorizes” the caller to send “telemarketing messages using a . . . prerecorded voice.” Id. at § 64.1200(f)(9). The FCC has created several exceptions to the rule that a telemarketing call requires prior express written consent. Id. at § 64.1200(a)(2). For example, under the “health care message” exception, a telemarketing call that “delivers a health care message” requires only prior express consent, not prior express written consent. Id. at § 64.1200(a)(2). Notably, in July of 2023, the FCC issued the TCPA Exemptions Order (the Order) which introduced

Duane Morris TCPA Class Action Review – 2024

amendments to the TCPA ’ s rules for placing calls made with artificial and prerecorded voices, i.e. , robocalls to residential numbers. Specifically, the TCPA provides that robocalls can be made to residential lines without consent if they are made for: (i) an emergency purpose; (ii) not made for commercial purposes; (iii) made for commercial purposes but do not include advertisements or telemarketing; (iv) made by or on behalf of a tax-exempt non-profit organization; or (v) deliver a “health care” message made by or on behalf of an entity covered by HIPAA. The Order amended these residential exemptions to adopt certain numerical limits on such robocalls, except for such calls made for emergency purposes. Now, robocalls can be placed to a residential line without consent only if the call: i. is not made for a commercial purpose and the caller makes no more than three calls within any consecutive 30-day period; ii. is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing and the caller makes no more than three calls within any consecutive 30-day period; iii. is made by or on behalf of a tax-exempt non-profit organization and the caller makes no more than three calls within any consecutive 30-day period; or iv. delivers a “health care” made by or on behalf of an entity covered by HIPAA and the caller makes no more than one call per day to each patient ’ s residential line, up to a maximum of three calls combined per week to each patient ’ s residential line. See 47 CFR 64.1200(a)(3)(ii)-(v). In addition to the new numerical limits implemented by the Order, the FCC requires callers to honor the called party ’ s request to opt-out of future calls. This requires the provision of opt-out mechanisms for the called party to make a do-not-call request. If called persons opt-out, then their number must be automatically recorded to a do-not-call list. The amendments also require the initiator of such calls to institute procedures for the maintenance of a do-not-call list, including written policies, training, recording and disclosure requirements. States are also active when it comes to enacting “mini-TCPA” statutes of their own. For some of these laws, there is nothing “mini” about them, as their restrictions in some cases are equally, if not more stringent, than the federal TCPA. For example, Connecticut enacted amendments to its telemarketing law effective October 21, 2023, that are arguably as far-reaching as any mini-TCPA to date. They generally provide that “no telemarketer may make, or cause to be made, a telephonic sales call to a consumer without such consumer ’ s prior express written consent.” S.B. 1058, 2023 Leg., Reg. Sess. (Conn. 2023). Also of note, Maryland enacted a “mini-TCPA” in May 2023 that is set to take effect at the start of 2024 and contains a broader definition of “autodialers” than what the federal TCPA provides for under the U.S. Supreme Court ’ s decision in Duguid , 141 S. Ct. at 1171-73. Maryland ’ s pending new law, titled the Stop the Spam Calls Act of 2023, further prohibits “telephone solicitations that involve “an automated system for the selection or dialing telephone numbers” or “the playing of a recorded message when connection is completed to the number called” without first obtaining prior express written consent. 2023 Md. ALS 414. 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.

Duane Morris TCPA Class Action Review – 2024

Courts granted class certification in 70% of TCPA cases in 2023, and denied it 30% of class certification motions. II. Significant Rulings In TCPA Class Actions 1. Rulings Granting Class Certification The plaintiff secured an early 2023 victory on a class certification motion in Williams, et al. v. PISA Group, Inc., 2023 U.S. Dist. LEXIS 30768 (E.D. Penn. Feb. 24, 2023). In that case, the plaintiff filed a class action alleging that the defendant Pisa Group (PGI) violated the TCPA by calling her and numerous others at their residential phones despite their phone numbers being registered on the national Do Not Call Registry (DNC) and despite their not having an established business relationship with PGI. In turn, PGI admitted to calling Williams and seven other individuals in error thirty-seven times, and the plaintiff submitted an expert report suggesting that PGI may have improperly called as many as 30,373 residential telephone numbers that fell within the definition of Plaintiff ’ s proposed class. Id. at *2. The plaintiff filed a motion for class certification pursuant to Rule 23,

and the court granted the motion. First, as to the numerosity requirement, the court found that the plaintiff ’ s expert concluded that PGI called 4,997,966 unique telephone numbers that were on the DNC during the class period, and that the class was therefore sufficiently numerous. Id. at *18. As to the typicality requirement, the court noted that the plaintiff ’ s claims were identical to the claims of the proposed class members, since the plaintiff alleged that PGI uniformly violated all class members’ rights under the TCPA by calling the class member ’ s DNC-registered number more than once during a 12-month period. Id. at *21. The court determined that the plaintiff was an adequate class representative and that her counsel was sufficiently experienced in class litigation to meet the adequacy of representation requirement. Id. at *24. The court also stated that the plaintiff proved that her interests and incentives aligned with those of the class, and that there was strong similarity of legal theories between all members of the proposed class and that the class claims arose from the same practice or course of conduct on the part of PGI. Id. at *26-27. The court ruled that the plaintiff ’ s claims all fell upon the shared and easily identifiable issue of whether PGI made two or more calls to individuals within a 12-month timeframe while those numbers were registered on the DNC for more than thirty days. Id. at *29-30. Finally, the court concluded that a class action would be the superior method of adjudication because TCPA cases can involve hundreds of relatively small, factually-similar claims, the plaintiff submitted a workable method for assessing the claims of class members in an efficient manner, and no parties put forward evidence or argument suggesting that any of the Rule 23(b)(3)(A)-(D) factors weighed against class certification. Id. at *28. Accordingly, the court granted the plaintiff ’ s motion for class certification. In Douglas Phillip Brust, D.C., P.C., et al. v. Opensided MRI Of St. Louis LLC, 343 F.R.D. 581 (E.D. Mo. 2023), the plaintiffs, two professional corporations, filed a class action alleging that the defendant sent unsolicited faxes in violation of the TCPA. Specifically, the plaintiffs asserted that during the early months of the COVID-19 pandemic and at the height of the related shutdowns, the defendant sent faxes to

Duane Morris TCPA Class Action Review – 2024

members of the St. Louis medical community alerting them that it was open and its imaging services were available while other radiologic providers were closed. Id. at 585. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court granted the motion. The court found that the plaintiffs had standing to bring their claims because the receipt of unwanted faxes via online fax services was sufficient to confer Article III standing to bring a claim under the TCPA. The court stated that the class was sufficiently numerous at over 1,500 members. In addition, the court found that the commonality requirement was met because of the several questions common to all class members, including: (i) whether the defendant used a telephone facsimile machine, computer, or other device to send the faxes to “telephone facsimile machines,” fax servers, or any other equipment; (ii) whether the faxes were “advertisements” as defined by 47 U.S.C. § 227(a)(5); (iii) whether the defendant was the “sender” of the faxes as defined by 47 C.F.R. § 64.1200(f)(11); (iv) whether the defendant could meet its burden to demonstrate it had prior express invitation or permission to send the faxes; (v) whether the opt-out notice on the faxes complied with the TCPA; and (vi) whether the TCPA regulates unsolicited fax ads sent to online fax services. Id. at 592. The court also found that the plaintiffs’ claims were typical to those of the putative class members because they all received unsolicited fax advertisements that wasted their time and invaded their rights to privacy and seclusion. Id. at 593. Turning to the Rule 23(b) analysis, the court determined that the plaintiffs met the predominance requirement because common questions predominated over any individual inquires. Finally, the court reasoned that a class action would be the superior method of adjudication because individual members had little incentive to sue, as their damages would be limited to $500 to $1,500; there was no known existing individual litigation; adjudication of all 7,522 potential individual claims would be inconvenient and costly in terms of judicial resources; and any concerns about manageability are outweighed by the superior nature of a class action. Id. at 594. For these reasons, the court granted the plaintiffs’ motion for class certification. Finally, in Moore, et al. v. Club Exploria , 2023 U.S. Dist. LEXIS 226549 (N.D. Ill. Dec. 20, 2023), the plaintiff filed a class action alleging that the defendant, a vacation management company, contracted with a third-party to send prerecorded calls on behalf of the defendant advertising its vacation management services without consent in violation of the TCPA. The court previously had granted the plaintiff’s motion for class certification. Subsequently, the defendant moved to dismiss for lack of subject-matter jurisdiction, and the plaintiff moved to distribute the class notice. The court granted the plaintiff’s motion and denied the defendant’s motion. The defendant contended that the plaintiff failed to allege a concrete injury that was traceable to the defendant’s conduct. The plaintiff asserted that he received unwanted calls despite having his number registered on the National Do Not Call Registry and informed the defendant that he did not want to be contacted. The court found that the plaintiff’s complaint alleged a concrete injury under the TCPA, as unwanted calls to individuals on the National Do Not Call Registry constituted a concrete harm. The court explained that the issue of consent was an affirmative defense that did not impact standing at this stage. Additionally, the court found that the plaintiff’s injury was traceable to the defendant’s conduct, as it resulted from the its failure to comply with the TCPA by placing unwanted calls without consent. Accordingly, the court found that the plaintiff’s complaint sufficiently alleged a violation of the TCPA to confer standing, and denied the defendant’s motion to dismiss. The court also concluded that the plaintiff’s proposed notice met Rule 23's requirements and approved the class action notice. 2. Rulings Denying Class Certification Class certification was denied in Wiley, et al. v. American Financial Network, Inc ., 2023 U.S. Dist. LEXIS 127293 (C.D. Cal. July 3, 2023), because the plaintiff was not a typical representative of the class she purported to represent and that, therefore, the plaintiff could protect the class interests as Rule 23(a) requires. The defendant was a mortgage banker that makes telemarketing calls to offer consumers its lending services. The defendant purchased hundreds of thousands of consumer leads from professional lead companies which: (1) were scrubbed against the National Do Not Call Registry (NDNCR), and (2) came with an identifier number that verifies a person ’ s express written consent to be contacted about loan products. Id. at *1-2. The defendant also obtained leads from sources such as past customers, consumers that directly inquired with the defendant, and other referrals. Id. at *2. The defendant called its leads using

Duane Morris TCPA Class Action Review – 2024

a “single power dialer provided by a company call[ed] Xencall” to pitch its services. Id. The plaintiff alleged that the defendant called her at least three times without her consent even though her number was on the NDNCR. Id. The court determined that the plaintiff did not carry her burden to show that she was a typical or adequate representative of the class. Id. at *12. The plaintiff sought to represent class members who: “hope[d] and expect[ed] that his or her privacy would be respected and not invaded by unwanted [phone calls]” from the defendant. Id. at *7. Significantly, the plaintiff left the defendant a voicemail asking for a return call and then spoke with the defendant ’ s representative about the services. Id. at *7-8. The court concluded that, if the plaintiff asked the defendant to contact her, then the plaintiff was not a typical or adequate representative of class members who asserted that they did not consent to the defendant contacting them. Id. at *8. Because these facts were unique to the plaintiff, the court determined that the litigation would have a “skewed focus and diversion of resources” that may benefit the plaintiff, rather than other class members. Id. at *10. The court also considered whether the plaintiff ’ s unique circumstances could deter her from vigorously prosecuting the claims of the class members, and that the plaintiff ’ s weaker claim could give her an incentive to settle for a lower amount than might be considered for the stronger claims. Id. For these reasons, the court denied the plaintiff ’ s motion for class certification. Another ruling this past year in which a court denied class certification under Rule 23 was Bank, et al. v. ICOT Holdings, LLC, 2023 U.S. Dist. LEXIS 41898 (E.D.N.Y. Mar. 13, 2023). However, as compared to Wiley, the court denied the motion for failure to meet the adequacy requirement of Rule 23 as composed to typicality. Id. at *7. In Bank , the plaintiff filed a class action alleging that the defendant violated the TCPA when he answered prerecorded phone calls promoting hearing aids called to his mother ’ s phone, which was on the National Do Not Call Registry. Id. at *3. The plaintiff filed a motion for class certification, and the Magistrate Judge recommended that the motion be denied because a class of non-subscribers such as the plaintiff was not ascertainable. Id. at *2-5. The court adopted the Magistrate Judge ’ s recommendations and denied the motion for class certification. Id. The plaintiff did not dispute that such a class was not ascertainable, but contended that the “unnamed class members would be the subscribers” to the numbers on the defendants’ list. Id. at *4. The court noted that a class consisting solely of subscribers might be ascertainable, but the plaintiff would not be an adequate representative as a non-subscriber himself. Id. at *5. The court explained that it was not settled under circuit case law whether a non-subscriber like the plaintiff – who did not live with the subscriber but visited regularly – was a “called party” under the TCPA. Id. Under these circumstances, the court ruled that resolving that issue would take up too much of the litigation at the expense of the class members. Id. For these reasons, the court denied the motion for class certification. The court also denied in part a motion to strike class allegations in Zoulek, et al. v. Gannett Co., 2023 U.S. Dist. LEXIS 87109 (E.D. Wis. May 18, 2023). The plaintiff filed a class action alleging that the defendant called her at least 17 times, in violation of the TCPA, in an attempt to get her to resubscribe to the Milwaukee Journal Sentinel. Id. at *1. The plaintiff sought certification of two nationwide classes comprised of similarly affected individuals. The defendant moved to strike the class allegations, arguing that the plaintiff ’ s claims were not typical to those of the claims of the putative class members, and that the plaintiff was not an adequate class representative. Id. at *5. The court granted in part and denied in part the motion. The court granted the motion to strike with regard to allegations related to a potential Rule 23(b)(2) class, as the complaint sought monetary relief, and thus class certification under Rule 23(b)(2) was not appropriate. Id. at *6. The court denied the motion to strike the remaining class allegations under Rule 23(b)(3) because it was premature at this stage of the litigation to conclude that individual inquiries would predominate over common questions of law or fact. Id. at *6. The court ruled that concerns about the plaintiff being an atypical or inadequate representative for the Do Not Call Registry Class were also premature because the class allegations were plausible. Id. at *11. Accordingly, the court granted the defendant ’ s motion to strike class allegations related to Rule 23(b)(2), but denied it for the remaining class allegations under Rule 23(b)(3). Finally, in True Health Chiropractic, Inc., et al. v. McKesson Corp., 2023 U.S. App. LEXIS 28346 (9th Cir. Oct. 25, 2023), the plaintiffs filed a class action alleging that the defendant sent junk faxes in violation of

Duane Morris TCPA Class Action Review – 2024

the TCPA. The district court granted the plaintiff’s motion for summary judgment, finding that that the plaintiff did not consent to receive the faxes. The district court also decertified the plaintiff’s class, finding that the it was bound by the Federal Communication Commission's Amerifactors declaratory ruling, which determined that the TCPA does not apply to faxes received through an online fax service (from In Re Amerifactors Financial Group, LLC Pet. for Expedited Declaratory Ruling, 34 FCC Rcd. 11950, 11950-51 (2019)). On appeal, the Ninth Circuit affirmed the district court’s rulings. The Ninth Circuit explained that the TCPA forbids sending an advertisement via fax "to any person without that person's prior express invitation or permission, in writing or otherwise." Id . at *3. The Ninth Circuit stated that neither the registration form nor the end-user license agreements established that the plaintiff consented to receive faxed advertisements at issue. Id . The Ninth Circuit determined that the defendant failed to show that the plaintiff consented to receive faxed advertisements. The Ninth Circuit also found that the district court did not abuse its discretion in decertifying the proposed class. First, the Ninth Circuit held that it did not matter that the full Commission did not issue the rulings, because Congress authorized the Commission to "delegate any of its functions,” and therefore, any decisions issued on delegated authority "have the same force and effect" as orders of the full Commission. Id . at *5. Further, the Ninth Circuit found that Amerifactors was a "final order" under the Hobbs Act, was subject to judicial review as provided by the Hobbs Act, and applied retroactively to the faxes at issue. The Ninth Circuit ruled that the district court was bound by Amerifactors to grant summary judgment to the defendant on any class claims for faxes received through an online fax service because it found that the TCPA does not apply to such faxes. Since the district court found that the plaintiffs had no viable methodology for distinguishing class members who had received faxes on a stand-alone fax machine and those who had received them through an online fax service, they could not prevail on their class claims unless the district court disagreed with Amerifactors. Id. at *7. Accordingly, the Ninth Circuit agreed with the district court’s ruling that the defendant did not willfully or knowingly violate the TCPA, and the district court did not err in decertifying the class. 3. Issues With Article III Standing In TCPA Class Actions 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. In Drazen, et al. v. Pinto, 74 F.4th 1336 (11th Cir. 2023), the plaintiffs filed a class action against the defendant alleging violations of the TCPA. The plaintiffs claimed that GoDaddy used an automatic telephone dialing system to make promotional calls and texts to sell services and products or contact individuals who were no longer customers. Id. at 1339. Multiple similar class actions were filed, and, eventually, the district court consolidated them. Id. at 1340. The plaintiffs ultimately reached a settlement agreement with GoDaddy, which included a class of individuals who received calls or texts from GoDaddy between November 2014 and December 2016. Id. at 1341. However, the district court questioned its jurisdiction in light of a previous court decision that stated that receiving a single text message did not constitute a concrete injury sufficient to establish standing. Id. at 1342. To resolve this, the parties proposed a revised class definition, but the district court determined that only the named plaintiffs needed standing. Id. at 1340. Because named plaintiff Herrick received only one text, the district court found that he did not have standing, and many other class members had meritless claims. Id. The district court approved a settlement agreement, and class counsel requested attorneys’ fees and costs. Id. at 1341. An objector, Pinto, argued that the settlement was a “coupon settlement” under the Class Action Fairness Act (CAFA), and that the district court awarded fees prematurely. Id. The district court amended its fee award and ultimately approved a lower fee. Pinto appealed, focusing on CAFA issues, but the Eleventh Circuit dismissed the case for lack of jurisdiction, citing a lack of Article III standing for class members who received only one text message. Id. The plaintiff then moved for rehearing en banc , urging the Eleventh Circuit to reevaluate the standing issue. Id. at 1342. The Eleventh Circuit agreed, and it remanded the action to the district court. Id. at 1346. The Eleventh Circuit opined 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. Id. at 1345. The Eleventh Circuit ruled that the harm of receiving one text

Duane Morris TCPA Class Action Review – 2024

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