Duane Morris TCPA Class Action Review – 2024

occur during the class certification stage. Id. at *18. 5. Rulings On Summary Judgement In TCPA Class Actions Without Deciding Class Certification While there were many defense-side victories in 2023, Gaker, et al. v. Citizens Disability, LLC, 2023 U.S. Dist. LEXIS 19182 (D. Mass. Feb. 6, 2023), was not one of them. The parties cross-filed summary judgment motions, and the court granted the plaintiff ’ s motion while denying the defendants’ motion. The plaintiff in Gaker filed a class action against the defendant alleging violations of the TCPA by making telemarketing calls to her cell phone without her consent, despite her being on the Do Not Call Registry. Id. at *1. The defendant argued that the plaintiff consented to receive such calls. Id. The plaintiff had a recognized disability and received Supplemental Security Income benefits since 2015. Id. at *2. The defendant was a Massachusetts for-profit corporation that assists individuals with disabilities in claiming benefits from the Social Security Administration and relies on telemarketing for client outreach. Id. at *4. The defendant obtained the plaintiff ’ s personal information from a website operated by Digital Media Solutions, which included a disclaimer about receiving marketing calls from “Marketing Partners,” including the defendant. Id. at *6-7. The defendant made seven cell phone in April 2020, which the plaintiff alleged violated the TCPA. Id. at *9. The court examined whether the website ’ s disclosure about being contacted by Marketing Partners, including the defendant, was clear and conspicuous and whether it constituted unambiguous consent. Id. The court found that the disclosure on the website did not meet the criteria for clear and conspicuous disclosure, as it was inconspicuously placed, in small font, and obscured by other attention-grabbing elements on the page. Id. at *19-20. The court rejected the defendant ’ s argument that the plaintiff ’ s inability to recall her interaction with the website affected her ability to dispute consent, as consent is judged by an objective standard and not by the individual ’ s subjective recollection. Id. at *24-25. The court thus concluded that the defendant failed to establish that the disclosure on the website met the TCPA ’ s requirements for clear and conspicuous consent, and therefore granted the plaintiff ’ s motion and denied the defendant ’ s motion. Id. at *25-27. 6. Rulings Affirming Dismissal For Failure To State A Viable TCPA Claim This past year the Seventh Circuit affirmed a dismissal order for failure to state a claim in Ambassador Animal Hospital, Ltd., et al. v. Elanco Animal Health Inc ., 74 F.4th 829 (7th Cir. 2023). After reviewing the dismissal de novo , the Seventh Circuit held that the plaintiff ’ s claim was not viable because: (i) the subject faxes did not indicate, directly or indirectly, to a reasonable recipient that the animal product and services company was promoting or selling some good, service, or property, and (ii) use of the company ’ s trademarked logo on the invitations did not reasonably encourage readers to buy any of the company ’ s products or services. The defendant in that case sent the plaintiff two unsolicited faxes inviting the plaintiff ’ s veterinarians and its owner to RSVP for two free dinner programs. The faxes listed the topics of the dinner programs – one titled “Canine and Feline Disease Prevention Hot Topics” and the other “Rethinking Management of Osteoarthritis” – and indicated that both programs had been approved for continuing education credits. Id. at 830. The faxes also provided the names of the programs’ presenters. The top left and bottom right corners of each invitation included the trademarked “Elanco” logo, and the bottom of each fax contained a notice encouraging recipients to consult their state or federal regulations or ethics laws about restrictions on accepting industry-provided educational and food items. Id. The plaintiff asserted that the two faxes were unsolicited advertisements under the TCPA because the free dinner programs were used to market or sell the defendant ’ s animal health goods and services. Id. The defendant moved to dismiss the complaint for failure to state a claim. The Seventh Circuit focused on the absence in the TCPA to any reference to the sender ’ s purpose. To be an unsolicited advertisement under the TCPA, the fax itself must indicate – directly or indirectly – to a reasonable recipient that the sender is promoting or selling some good, service, or property. In other words, the “material ... which is transmitted” – the faxed document – must perform the advertising. Id. at 832. An unsolicited advertisement “does not depend on the subjective viewpoints of either the fax sender or recipient, and thus an objective standard governs whether a fax constitutes an unsolicited advertisement.” Id. The plaintiff asserted that the faxes contained

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