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

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