Duane Morris TCPA Class Action Review – 2024

Ninth Circuit focused its analysis on statutory construction. The plaintiff had received a text from an unknown number stating: “Hiya Lucine, you are a valuable customer. In these tough times, let us reimburse [you] for your shopping needs.” Id. at 1159. The text then provided a link directing the plaintiff to a promotional website by the defendant Reward Zone. Id. On this website, the defendant enticed consumers to complete “Deals” in order to claim prizes. Id. Although the plaintiff was never a customer of the defendant and never provided her cell number to the defendant or its lead vendor, the plaintiff received at least two more similar text messages from the defendant soliciting her to complete “Deals” within a 12- month period. Id. The plaintiff asserted that the unsolicited text constituted a “prerecorded voice message” that violated the TCPA because one definition of “voice” in Meriam Webster ’ s dictionary is “an instrument or medium of expression,” and the plaintiff asserted that the automatic messages sent to the plaintiff (which were drafted before being sent) constituted “prerecorded voices” as prohibited by § 227(b)(1)(A) of the TCPA. Id. When analyzing the plaintiff ’ s claims, the Ninth Circuit noted that Congress clearly intended “voice” in 47 U.S.C. § 227(b)(1)(A) to encompass only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound. Id. at 1161. According to the Ninth Circuit, the ordinary meaning of “voice” when the TCPA was enacted was a sound formed in or emitted from the human larynx in speaking, and a sound produced by vertebrates by means of lungs, larynx, or syrinx. Id. at 1162. Further, the Ninth Circuit explained that other definitions also showed that the ordinary meaning of voice relates only to audible sound. Id. The Ninth Court also noted that the fact that a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense. Id. Given that the Ninth Circuit determined that the standard for statutory construction is that, if a statute is unambiguous, it not defer to the agency ’ s interpretation, the Ninth Circuit affirmed the district court ’ s grant of the defendant ’ s motion to dismiss. The Ninth Circuit reasoned that the ordinary meaning and statutory context show that the term “voice” in 47 U.S.C. § 227(b)(1)(A) clearly excluded a symbolic definition. Id. Thus, the Ninth Circuit found that the defendants’ text messages to the plaintiff could not have violated the prohibition on “prerecorded voices” in that section. Id. Accordingly, the Circuit affirmed the dismissal of the plaintiffs’ class action. In a second case, Pascal, et al. v. Concentra, Inc., 2023 U.S. App. LEXIS 8858 (9th Cir. Apr. 13, 2023), the Ninth Circuit affirmed the district court ’ s decision granting summary judgement in favor of a defendant facing class action allegations that it violated the TCPA when it messaged the plaintiff using Textedly, an online text-messaging service. The Ninth Circuit ruled that the decision was foreclosed by its ruling in Borden, et al. v. eFinancial, LLC , 53 F.4th 1230 (9th Cir. 2022), where it held that a system constitutes an autodialer regulated by the TCPA only if it “generates random or sequential telephone numbers.” Id. at *2. Because Textedly did not store or produce randomly or sequentially generated telephone numbers, the Ninth Circuit determined that the defendant ’ s text message was not sent to the plaintiff via use of an autodialer in violation of the TCPA. Id. For these reasons, the Ninth Circuit affirmed the district court ’ s ruling. 10. Decisions As To Notice In TCPA Class Actions Class notice and the party responsible for its cost is rarely an issue for rulings at the federal circuit level, but the Seventh Circuit addressed this issue in 2023 in Bakov, et al. v. Consolidated World Travel, Inc., 68 F.4th 1053 (7th Cir. 2023). The plaintiffs filed a class action alleging that the defendant violated the Telephone Consumer Protection Act (TCPA) by making prohibited calls to class members. The court initially limited the class to Illinois residents, but after a change in the law, certified a nationwide class. The district court ordered the defendant to cover the costs of notifying the nationwide class members about the lawsuit. On appeal, the Seventh Circuit affirmed the district court ’ s ruling. The Seventh Circuit noted that while, in most cases, it is the plaintiff ’ s responsibility to cover class notification costs, some exceptions existed when the defendant has been found liable. In such cases, the district court had discretion to shift the cost of class notice to the defendant. The Seventh Circuit rejected the district court ’ s position that shifting costs would penalize the defendant for raising legitimate arguments during the lawsuit. The Seventh Circuit emphasized that the cost allocation was not a penalty but a decision based on the requirements of Rule 23(c)(2)(B) for providing notice to class members. The Seventh Circuit therefore

Made with FlippingBook - professional solution for displaying marketing and sales documents online