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

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