Duane Morris TCPA Class Action Review – 2024

granted the defendant ’ s motion to dismiss. Id. 7. Rulings Denying Motions To Dismiss TCPA Class Actions For Failure To State A Claim Lyngaas, et al. v. Solstice Benefits, Inc., 2023 U.S. Dist. LEXIS 64215 (E.D. Mich. Apr. 12, 2023), was a prime example this past year of a TCPA claim that appeared on its face to be ripe for Rule 12(b)(6) dismissal yet survived. The plaintiff, a dental office, filed a class action alleging that the defendant, a dental insurance carrier, violated the TCPA by sending unsolicited advertisements by fax without prior permission. Id. at *2. The defendant filed a motion for judgment on the pleadings, claiming that the fax in question was not an advertisement under the TCPA because it did not advertise the defendant ’ s services. Id. at *6. The court denied the defendant ’ s motion. It ruled that the fax constituted an advertisement as it indirectly promoted the defendant ’ s services. Id. at *10-11. The court opined that the fax, along with evidence from the defendant ’ s website, demonstrated a commercial solicitation, aligning with the TCPA ’ s intent to protect privacy interests and regulate fax communications. Id. at *13-14. The court found that taken as a whole, the fax was “at least . . . an indirect commercial solicitation” to promote the sale of its provider network service for the plaintiff to purchase. Id. at *13. For these reasons, the court denied the defendant ’ s motion for judgment on the pleadings. Id. at *14. The defendant in Scherrer, et al. v. FPT Operating Co., LLC, 2023 U.S. Dist. LEXIS 125390 (D. Colo. July 21, 2023), fared no better. The plaintiff filed a class action alleging that the defendant violated the TCPA by making unsolicited calls to her cellular phone (and those of the purported class) without prior consent using an ATDS. The defendant filed a motion to dismiss the complaint for failure to state a claim on the grounds that plaintiff failed to allege the defendant used an ADTS as that term is defined by the TCPA. Id. at *4. The defendant attempted to rely on Duguid and claimed that the Supreme Court ’ s construction of the ATDS definition ruled out “any argument that equipment can be an ATDS even if it has no capacity to generate phone numbers randomly or sequentially.” Id. The court disagreed. It gave weight to a footnote in the Duguid decision that noted that “an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list” and then “store those numbers to be dialed at a later time.” Id. at *7. Despite being dicta , the court afforded the footnote substantial weight, pointing out that other case law authorities had found this interpretation persuasive. Ultimately, the court held “an autodialer that stores a list of telephone numbers using a random or sequential number generator to determine the dialing order is an ATDS under the TCPA,” thereby rejecting the notion that, in order to be an ATDS, the telephone numbers themselves have to first be generated by a random or sequential number generator. Id. at *8-9. As such, the court ruled in the plaintiff ’ s favor and held that the allegations were sufficient to survive dismissal. 8. Appellate Decisions Reversing Dismissal Of TCPA Claims In reversing the dismissal of a TCPA action, the Eleventh Circuit in Muccio, et al. v. Global Motivation, Inc ., 2023 U.S. App. LEXIS 22436 (11th Cir. Aug. 25, 2023), reviewed de novo the district court ’ s ruling on the issue of standing arising over whether the plaintiff demonstrated a concrete harm. The plaintiff appealed the dismissal of his amended complaint for lack of Article III standing. This putative class action was brought against the defendants, Global Motivation, Inc. and its owner, in his individual capacity, alleging that Global Motivation sent him and at least 100 other individuals five unsolicited text messages, using automated computer systems to solicit the sale of consumer goods or services. Plaintiff asserted two causes of action under the Florida Telephone Solicitation Act (FTSA), Florida Statute § 501.059, and three counts under the federal TCPA. The defendants moved to dismiss the complaint for lack of Article III standing. Citing Salcedo v. Hanna , 936 F.3d 1162 (11th Cir. 2019), and Drazen v. Pinto , 41 F.4th 1354 (11th Cir. 2022), vacated, 61 F.4th 1297 (11th Cir. 2023) ( Drazen I ), the district court found that the plaintiff could not establish a concrete harm. After the plaintiff appealed from the dismissal, the Eleventh Circuit vacated the panel opinion in Drazen I and reheard it en banc. The Eleventh Circuit, when rehearing the Drazen appeal, explained that “the Constitution empowers Congress to decide what degree of harm is enough so long as that harm is similar in kind to a traditional harm.” Drazen v. Pinto , 74 F.4th 1336, 1348

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