Duane Morris TCPA Class Action Review – 2024

(11th Cir. 2023) (en banc) ( Drazen II ). In Drazen II , the Eleventh Circuit also stated that “the harm associated with an unwanted text message shares a close relationship with the harm underlying the tort of intrusion upon seclusion.” Id. at 17. In Muccio , the Eleventh Circuit applied the rational of Drazen II and concluded that “the receipt of an unwanted text message causes a concrete injury.” Id. at *2. The Florida Legislature also “has used its lawmaking powers to recognize a lower quantum of injury necessary to bring a claim” under the FTSA.” Id. Accordingly, the Eleventh Circuit remanded the case for further proceedings. The Seventh Circuit also issued a notable reversal and remand in a TCPA case in Craftwood II, Inc., et al. v. Generac Power System, Inc., 63 F.4th 1121 (7th Cir. 2023). This case involved the plaintiffs, two hardware companies, suing the defendant, a hardware store supplier, for sending three fax advertisements allegedly in violation of the TCPA. The district court initially granted the defendant ’ s motion for summary judgment on the basis that the plaintiffs consented to receiving the faxes. Id. at 1125. On appeal, the Seventh Circuit reversed and remanded the action. It found a genuine dispute of fact regarding consent. Id. The plaintiffs were part of the Do It Best (DIB) hardware cooperative, within which the defendant supplied goods to DIB, and Comprehensive Marketing, Inc. (CMI), an independent representative, assisted in marketing the defendant ’ s products. Id. at 1124. The defendant claimed that the plaintiffs gave prior express consent through their membership agreement with DIB and through a phone call in which an employee of CMI allegedly obtained permission to send faxes. Id. The plaintiffs disputed this, stating they had a no-fax policy. Id. The Seventh Circuit found that the membership agreement did not provide explicit consent for the defendant to send fax advertisements. Id. at 1127. Regarding the employee ’ s phone call, the Seventh Circuit found a factual dispute existed because the plaintiffs denied that they provided permission for the faxes on the call. Id. at 1129. The Seventh Circuit therefore reversed and remanding the action on the basis that the factual disputes precluded granting the defendant ’ s motion for summary judgment. Id. at 1129. The Sixth Circuit entered the picture this past years in Dickson, et al. v. Direct Energy, LP , 69 F.4th 338 (6th Cir. 2023), by overturning the district court ’ s dismissal of the plaintiff ’ s TCPA class action lawsuit for lack of standing. The plaintiff alleged that the defendant sent him multiple ringless voicemails (RVMs) to his cell phone advertising its services without his consent. The plaintiff alleged these communications “tied up his phone line, cost him money, and were generally a nuisance,” as well as a disturbance of his solitude and an invasion of his privacy. Id. at 341. The defendant hired an expert witness to analyze plaintiff ’ s phone records, and the expert concluded only one of the voicemails produced by plaintiff in discovery was received from the defendant. Id. at 342. With this information in hand, the defendant moved to dismiss the complaint for lack of standing. Specifically, the defendant argued the plaintiff lacked standing and suffered no concrete injury. Id. The district court granted the defendant ’ s motion to dismiss on the ground that the receipt of one voicemail did not constitute a concrete harm sufficient for Article III purposes. Id. On appeal, the Sixth Circuit reversed the district court ’ s ruling. The Sixth Circuit opined that an intangible injury suffices if it is the type of harm protected at common law and finding that the plaintiff ’ s alleged harm was similar to the intrusion-upon-seclusion tort, which derives from a generalized right to privacy. Id. at 348. The Sixth Circuit held that defendant invaded the plaintiff ’ s “private sphere when it placed an unsolicited prerecorded call to his cell phone” and that he suffered a harm when the defendant “deposited an unsolicited RVM into his phone.” Id. at 345, 348. Additionally, the Sixth Circuit explained that Congress enacted the TCPA to protect against such harms. Id. at 349. The Sixth Circuit also noted that the number of RVMs the plaintiff received was irrelevant to the standing analysis. Id. at 348. Ultimately, the Sixth Circuit determined that the plaintiff suffered a concrete injury sufficient to confer Article III standing and reversed the district court ’ s ruling. 9. Appellate Decisions Affirming Dismissal Of TCPA Claims In affirming dismissal of a TCPA action, the Ninth Circuit in Trim, et al. v. Reward Zone USA LLC , 76 F.4th 1157 (9th Cir. 2023), held that the plaintiff ’ s claim under § 227(b)(1)(A) of the TCPA was properly dismissed because the three mass marketing text messages from the defendant did not use prerecorded “voices” because they did not include audible components as required under the TCPA. Id. at 1158. The

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