Duane Morris TCPA Class Action Review – 2024

advertising content via the seminar topics and were a pretext for unsolicited advertising. Id. The Seventh Circuit noted that the advertisements promoted good will. The Seventh Circuit opined that the TCPA creates an objective standard narrowly focused on the content on the faxed document and, thus, it declined to adopt the plaintiff ’ s pretext argument that was not supported by the text of the TCPA. Id. For these reasons, the Seventh Circuit affirmed the dismissal of the complaint for failure to state a claim. Further, in Barton, et al. v. Leadpoint , 2023 U.S. App. LEXIS 18471 (9th Cir. July 20, 2023), the Ninth Circuit ruled that Plaintiff did not have a viable cause of action under the TCPA because the telephone number that received the messages prompting the action was not a residential telephone number within the meaning of the TCPA. Specifically, the plaintiff used this telephone number – a number with the (718) area code – only for litigation purposes. Id. at *3. The plaintiff described the number at issue– the (718) area code number – as one that he obtained “in an effort to shield his (972) area code number . . . and to keep that number away from unsavory characters like telemarketers and telemarketing lawyers.” Id. at *2- 3. The plaintiff further characterized the (718) area code number as “not connected to financial accounts or social media accounts” and as not “serv[ing] as a gateway to other private information.” Id. at *3. The Ninth Circuit noted that although a telephone number on the national do-not-call registry was presumptively residential, that presumption can be rebutted by considerations such as: (i) how the plaintiff holds his telephone number out to the public; (ii) whether the telephone number is registered with the telephone company as a residential or business line; (iii) how much the plaintiff uses his telephone for business or employment; (iv) who pays for the phone bills; and (v) other factors bearing on how a reasonable observer would view the telephone line. Id. at *2. When analyzing these factors, the Ninth Circuit ruled that the subject telephone number was not a residential telephone number and thus, it fell outside the scope of the TCPA. Id. at *4. Accordingly, the Ninth Circuit court held that the plaintiff ’ s claim was properly dismissed by the district court. In Cunningham, et al. v. Daybreak Solar Power, LLC , 2023 U.S. Dist. LEXIS 102421 (N.D. Tex. June 13, 2023), a Texas district court granted a motion to dismiss the plaintiff ’ s class action. The plaintiff alleged he received a pre-recorded call from Defendant Daybreak Solar Power, LLC. The plaintiff asserted that the message started off saying “Hi, this is Brian Lee calling on behalf of The-Solar-Project.com.” Id. The defendant contended that the plaintiff failed to sufficiently plead direct liability for any alleged TCPA violation, and the court agreed. Regarding vicarious liability, the court found that the plaintiff did not state facts supporting vicarious liability of the defendant as pertaining to a third-party telemarketer. Id. at *7. Accordingly, the court dismissed the plaintiff ’ s TCPA claims. Finally, in Gaker, et al. v. Q3M Insurance Solutions , 2023 U.S. Dist. LEXIS 44919 (W.D.N.C. Feb. 8, 2023), the defendants in the case scored an early victory on a motion to dismiss. The plaintiff, a pharmacy technician, filed a class action alleging that the defendants, a telemarketer selling burial insurance and an insurance broker selling life insurance and burial insurance through telemarketing, sent her unsolicited telemarketing calls in violation of the TCPA. The plaintiff contended that the defendants violated the TCPA by making telemarketing calls to her cell phone, which was on the Do Not Call Registry. Id. at *2. The defendants filed a motion to dismiss, and the court granted the motion. Id. at *8. The defendants argued that only residential telephone numbers, and not cellular phone numbers, on the Do Not Call Registry were protected by the TCPA. Id. at *5. The court noted that the Federal Communications Commission (FCC) interpreted “residential subscribers” to include those who register their cell phone numbers on the No Do Call Registry, but that Fourth Circuit case law authorities had not addressed whether cell phone owners are considered “residential telephone subscribers.” Id. The court therefore looked to the clear text of the TCPA, which references “cellular telephones” in other provisions of the statute, evidencing that both the Congress and the FCC were aware of the distinction between a cellular telephone and a residential telephone and purposely protected only “residential telephone subscribers” under the provision regarding the Do Not Call Registry. Id. at *6-7. The court further opined that a cell phone ’ s mobility and functionality to silence or decline calls alleviated the concerns inherent with a home telephone. Id. The court noted that the plaintiff alleged no facts showing where she was when she received the calls or whether her phone was on silent, and did not answer the calls she allegedly received. Id. at *8. For these reasons, the court

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