TCPA Class Action Review – 2025

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

CITATION FORMATS All citations in the TCPA Class Action Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Career Counseling, Inc., et al. v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (4th Cir. 2024). If the decision is not available in the preferred format, a Lexis or Westlaw cite from the electronic database is provided, such as Sharfman M.D.P.A., et al. v. Precision Imaging St. Augustine LLC, 2024 U.S. Dist. LEXIS 92659 (M.D. Fla. May 23, 2024). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Head, et al. v. Citibank N.A ., Case No. 18-CV-8189 (D. Ariz. Aug. 8, 2024). E-BOOK HIGHLIGHTS The TCPA Class Action Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any e-book reader application. E-book reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The e-book is designed for easy navigation and quick access to informative data. The e-book is available by scanning the below QR code:

TCPA Class Action Review – 2025

NOTE FROM THE EDITOR Class action litigation generally involves high stakes that can keep corporate counsel and senior management awake at night. These cases can impact a company’s market share and reputation in a significant manner, creating substantial pressure on decision-makers who must navigate the associated risks and exposures. The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., has long been a focus of privacy and consumer-related litigation, particularly for class actions. For many years, the plaintiffs’ class action bar has successfully asserted TCPA causes of action based on allegations that a defendant used an automatic telephone dialing system (ATDS) to call or send messages to a cellphone without first obtaining prior express written consent. The TCPA Class Action Review serves multiple purposes. It aims to clarify the complexities of class action litigation and provide corporate counsel with up-to-date insights into the evolving nuances of Rule 23 and other types of representative proceedings. Through this publication, we seek to offer an analysis of emerging trends and key rulings, empowering our clients to make informed decisions when managing complex litigation risks. Defending class actions is a cornerstone of Duane Morris’ litigation practice. We hope this book, which reflects the years of experience and expertise of our class action defense team, will help our clients identify key trends in TCPA case law and offer practical strategies for handling this type of class action litigation. Sincerely,

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CONTRIBUTORS

TCPA Class Action Review – 2025

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must be ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. Collective Action – A type of representative proceeding governed by 29 U.S.C. § 216(b) where one or more plaintiffs seeks to bring suit on behalf of others who must affirmatively opt-in to join the litigation. It is applicable to claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Decertification – Following an order granting conditional certification of a collective action or certification of a class action, a defendant can move for decertification based on the grounds that the members of the collective action are not actually similarly-situated or that the requirements of Rule 23 are no longer satisfied for the class action. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a judgment or settlement. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit.

TCPA Class Action Review – 2025

Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action. Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly-situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

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TABLE OF CONTENTS

Page

I. Executive Summary ............................................... .............................................1 II. Significant Rulings In TCPA Class Actions...................................................... 3 1. Rulings Granting Class Certification. ........................................................... 4 2. Rulings Denying Class Certification............................................................. 6 3. Procedural Issues In TCPA Class Actions ................................................... 8 4. Rulings Granting Motions To Dismiss For Failure To State Claim ............ 9 5. Rulings On Settlement Approval In TCPA Class Actions ......................... 10 6. Rulings Denying Motions To Dismiss TCPA Class Actions ..................... 11 7. Appellate Decisions Affirming Dismissal Of TCPA Claims....................... 12 III. Top TCPA Class Action Settlements In 2024 ................................................. 12 Index Of 2024 TCPA Class Action Rulings ............................................................... 14

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TCPA Class Actions I. Executive Summary

The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. , has long been a focus of privacy and consumer-related litigation, particularly for class actions. For many years, the plaintiffs’ class action bar has successfully asserted TCPA causes of action based on allegations that a defendant used an automatic telephone dialing system (ATDS) to call or send messages to a cellphone without first obtaining prior express written consent. An ATDS is “equipment which has the capacity: (i) to store or produce telephone numbers to be called [or texted], using a random or sequential number generator, and (2) to dial such numbers.” 47 U.S.C. § 227(1)(A). Enacted in 1991, the TCPA is a federal statute aimed at protecting consumers from companies that use ATDS to engage in mass telemarketing methods, including robocalls. The TCPA originally focused on unwanted telephone calls and faxes. Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). The TCPA also bars a caller from making a “prerecorded” phone call to a cellphone without the called party ’ s consent. 47 U.S.C. § 227(b)(1)(A)(iii). In 2021, the U.S. Supreme Court issued its ruling in Facebook v. Duguid, et al. , 141 S. Ct. 1163 (2021), which adopted a narrow interpretation of what devices qualify as an ATDS. Before Duguid , some federal circuits held that equipment could qualify as an autodialer because it autodialed stored phone numbers that had not been randomly or sequentially generated in the first instance. But the Supreme Court rejected this interpretation in DuguId. It held that “a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” because a contrary interpretation “would capture virtually all modern cell phones, which have the capacity to store telephone numbers to be called and dial such numbers.” Id. at 1171-73. The technological advancements that have occurred since the TCPA’s enactment over 30 years ago have not only changed the methods that business use to engage and interact with customers, but also have also necessitated new rulings regarding the TCPA’s applicability. For example, text messaging is now used by businesses for many reasons, including to communicate with customers, solicit consumer feedback, announce product promotions, identify the status of a delivery, and utilize two-factor security authentication. As a result, courts have interpreted the TCPA to include text messages. The TCPA also empowers the Federal Communications Commission (FCC) to “prescribe regulations to implement” the statute, and to create exemptions to statutory liability “by rule or order.” 47 U.S.C. § 227(b)(2)(B). Under this authority, the FCC has created a “two-tier system of consent” for TCPA liability, with different kinds of calls requiring different kinds of consent. First, prerecorded calls that do not include “telemarketing” are lawful as long as the called party has provided “prior express consent.” 47 C.F.R. § 64.1200(a)(1)-(2). Second, prerecorded calls that do include “telemarketing” require “prior express written consent.” Id. at § 64.1200(a)(2) (emphasis added). Prior express consent is a lower threshold insofar as a called party generally provides such consent simply by giving their phone number to a business in connection with a transaction. Prior express written consent, by contrast, is harder to obtain – to provide such consent, a party must sign a written agreement that “clearly authorizes” the caller to send “telemarketing messages using a . . . prerecorded voice.” Id. at § 64.1200(f)(9). The FCC has created several exceptions to the rule that a telemarketing call requires prior express written consent. Id. at § 64.1200(a)(2). For example, under the “health care message” exception, a telemarketing call that “delivers a health care message” requires only prior express consent, not prior express written consent. Id. at § 64.1200(a)(2). Notably, in July of 2023, the FCC issued the TCPA Exemptions Order (the Order) which introduced amendments to the TCPA ’ s rules for placing calls made with artificial and prerecorded voices, i.e. , robocalls to

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residential numbers. Specifically, the TCPA provides that robocalls can be made to residential lines without consent if they are made for: (i) an emergency purpose; (ii) not made for commercial purposes; (iii) made for commercial purposes but do not include advertisements or telemarketing; (iv) made by or on behalf of a tax- exempt non-profit organization; or (v) deliver a “health care” message made by or on behalf of an entity covered by HIPAA. The Order amended these residential exemptions to adopt certain numerical limits on such robocalls, except for such calls made for emergency purposes. Now, robocalls can be placed to a residential line without consent only if the call: i. is not made for a commercial purpose and the caller makes no more than three calls within any consecutive 30-day period; ii. is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing and the caller makes no more than three calls within any consecutive 30-day period; iii. is made by or on behalf of a tax-exempt non-profit organization and the caller makes no more than three calls within any consecutive 30-day period; or iv. delivers a “health care” made by or on behalf of an entity covered by HIPAA and the caller makes no more than one call per day to each patient ’ s residential line, up to a maximum of three calls combined per week to each patient ’ s residential line. See 47 CFR 64.1200(a)(3)(ii)-(v). In addition to the new numerical limits implemented by the Order, the FCC requires callers to honor the called party ’ s request to opt-out of future calls. This requires the provision of opt-out mechanisms for the called party to make a do-not-call request. If called persons opt-out, then their number must be automatically recorded to a do- not-call list. The amendments also require the initiator of such calls to institute procedures for the maintenance of a do-not-call list, including written policies, training, recording and disclosure requirements. States are also active when it comes to enacting “mini-TCPA” statutes of their own. For some of these laws, there is nothing “mini” about them, as their restrictions in some cases are equally, if not more stringent, than the federal TCPA. For example, Connecticut enacted amendments to its telemarketing law effective October 21, 2023, that are arguably as far-reaching as any mini-TCPA to date. They generally provide that “no telemarketer may make, or cause to be made, a telephonic sales call to a consumer without such consumer ’ s prior express written consent.” See S.B. 1058, 2023 Leg., Reg. Sess. (Conn. 2023). Also of note, Maryland enacted a “mini- TCPA” in May 2023 that took effect at the start of 2024 and contains a broader definition of “autodialers” than what the federal TCPA provides for under the U.S. Supreme Court ’ s decision in Duguid , 141 S. Ct. at 1171-73. Maryland ’ s new law, entitled the Stop the Spam Calls Act of 2023, further prohibits “telephone solicitations that involve “an automated system for the selection or dialing telephone numbers” or “the playing of a recorded message when connection is completed to the number called” without first obtaining prior express written consent. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come. The overwhelming majority of TCPA lawsuits are brought as class actions. Relatively speaking, the plaintiffs’ bar did well in 2024 [had moderate success] in securing class certification in the TCPA space. In TCPA cases, courts granted class certification in 37.5% of cases and denied it in 62.5% of cases in 2024.

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II. Significant Rulings In TCPA Class Actions 1. Rulings Granting Class Certification

Bradley, et al. v. Dentalplans.com, 2024 U.S. Dist. LEXIS 100550 (D. Md. June 6, 2024), highlights two scenarios in which class action waivers and arbitration clauses are ineffective. The plaintiff filed a class action alleging that the defendant violated the TCPA by making unauthorized telemarketing calls to her and a proposed class of former DentalPlans customers. Having previously been a DentalPlans customer, the plaintiff continued to receive prerecorded calls after her plan had expired. She filed a motion for class certification, which the court granted. The proposed class included all individuals who were non-customers at the time they received calls from the defendant using a prerecorded voice message, on their cellular phones, aimed at selling goods or services, during periods when certain marketing scripts were used. Id. at *27. A subclass was designated for those who had previously held a dental plan through Cigna, one of the defendant’s dental savings plan providers. Id. at *28. The defendant contended that class action waivers and arbitration clauses in its agreements barred class certification. Id. at *29. However, the court determined that these clauses did not apply because the claims pertained to calls made after membership had expired. Id. at *31-32. Additionally, the court found that the website terms were not binding on the telephone sign-ups, as those plaintiffs never visited defendant’s website. Id. at *32. The court concluded that the plaintiff’s claims and those of the class all involved common questions, such as whether the defendant’s calls constituted telemarketing and whether the class members gave consent. It ruled that common issues predominated over individual ones, making a class action superior to individual litigation given the scale of the issues and the nature of the claims under the TCPA. Accordingly, the court granted the motion for class certification. The plaintiff in Nightingale, et al. v. National Grid USA Service Co., 107 F.4th 1 (1st Cir. July 9, 2024), initiated a class action against a debt collection company, claiming that repeated calls to collect a debt violated Massachusetts’ Consumer Protection Act. The plaintiff asserted these excessive calls invaded his privacy and deprived him of the use of his phone. In support of his motion for class certification, the plaintiff offered call records maintained by the defendants purporting to show when the defendants called class members, how many times class members were called, and the outcomes of these calls, and arguing that the records could prove a common injury and identify class members. Id. at *4. The district court denied class certification for lack of predominance, holding that the plaintiff would not be able to prove that the alleged privacy violations rose to

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the level of intrusion upon seclusion, which necessitates a showing of an “unreasonable and substantial or serious” invasion of the plaintiff’s privacy. Id. As a result, the need for individualized inquiries into the severity of privacy intrusions experienced by each class member would outweigh the common issues, thereby making class certification inappropriate. On appeal, the First Circuit vacated and remanded the district court’s ruling. The First Circuit explained that the receipt of unwanted debt collection calls was sufficient to constitute invasion of privacy. Id. at *11. Thus, it opined that the plaintiff’s call might constitute “common proof” of each class member’s privacy being invaded by the defendants. Id. Accordingly, the First Circuit remanded to the district court for further fact-finding on the sufficiency of proof of the call records as “common proof” of class-wide legal and factual issues (in addition to consideration of the remaining class certification factors). The decision to vacate and remand emphasizes the importance of common evidence in considering class certification. The court’s holding in Mantha, et al. v. Quotewizard.com, LLC, 2024 U.S. Dist. LEXIS 152987 (D. Mass. Aug. 16, 2024), underscores the efficacy of class actions in the TCPA context. In this case the plaintiff filed a class action alleging that the defendant violated the TCPA by sending unsolicited telemarketing messages to his phone, which is listed on the national Do-Not-Call registry. The plaintiff asserted that he received multiple messages from the defendant between August 9 and August 23, 2019, despite having taken steps to prevent such communications. The plaintiff filed a motion for class certification pursuant to Rule 23, which the court granted. The defendant attempted to exclude the testimony of the plaintiff’s expert witness, Anya Verkhovskaya, but the court denied this request. The plaintiff’s proposed class included all individuals in the U.S. whose residential numbers were listed on the National Do Not Call Registry (NDNCR) and who received more than one telemarketing text message within a 12-month period from the defendant’s services via a platform called Drips. Id. at *10. To support this definition, Verkhovskaya created a class list using standard data analysis techniques. Rather than attempting a comprehensive identification of all eligible phone numbers, she focused on a subset by narrowing down the class to avoid potential legal and factual issues. Id. at *11. The methodology involved a four-step process, including: (i) elimination of internal numbers; (ii) an authorization check; (iii) verification of text recipients; and (iv) a final verification that the remaining numbers were on the NDNCR, received multiple texts within a year, and were confirmed as residential. Id. at *12. Through this analysis, Verkhovskaya identified 66,693 phone numbers that met the criteria, to which the defendant allegedly sent 314,828 text messages. Id. The court found her expert analysis reliable and the methodology sound, and thus, the court denied the motion to exclude Verkhovskaya’s expert opinion. Regarding the plaintiff’s motion for class certification, the court found that the plaintiff sufficiently demonstrated that all potential class members experienced the same injury, i.e., that the defendant violated the TCPA by sending multiple unsolicited texts to numbers on the NDNCR. Id. at *31. The court also determined that the plaintiff sufficiently identified several common questions of law and fact relevant to all members, including whether their numbers were on the NDNCR, whether they received the texts, and if they provided prior consent to receive such communications. Id. at *32. The court also stated that the plaintiff established common issued to the class which predominated over individual concerns. The evidence, including expert testimony and the defendant’s internal documentation, indicated that the core aspects of the case — such as the classification of numbers and the nature of the texts — could be established through class- wide proof. Id. at *41. Ultimately, the court concluded that the plaintiff sufficiently established that a class action would be the superior method for resolving the dispute, given the relatively low statutory damages per violation, which makes individual claims economically unfeasible. The absence of other ongoing litigation regarding these issues and the manageable nature of a class action further supported certification. Accordingly, the court granted the plaintiff’s motion for class certification. 2. Rulings Denying Class Certification The plaintiff in Sharfman M.D.P.A., et al. v. Precision Imaging St. Augustine LLC, 2024 U.S. Dist. LEXIS 92659 (M.D. Fla. May 23, 2024), filed a class action alleging violations of the TCPA after receiving four unsolicited fax advertisements from the defendants, both imaging and radiology services providers. The plaintiffs contended that the defendants sent the unsolicited fax advertisements without the necessary opt-out information and without prior consent. The plaintiff filed a motion for class certification, and the Magistrate Judge recommended denying the motion. The Magistrate Judge found that, while plaintiff sufficiently alleged ascertainability, numerosity, and commonality, the plaintiff failed to meet the requirements for typicality and adequacy of representation. Id. at *7. Additionally, the court stated that the plaintiff failed to establish predominance and superiority. Id. On the issue of typicality, the court explained that the plaintiff’s claims would require highly individualized inquiries regarding prior express permission to receive the faxes, as the defendants identified

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many recipients who had purportedly provided such permission. Id. at *16-17. The issue of prior express also precluded a finding of adequacy of representation, the court explained, because the plaintiff did not sufficiently address the conflict of interest between himself and putative class members who gave express permission to receive the faxes. Id. at *24-25. The Magistrate Judge found that individualized issues, particularly around standing and permission to receive faxes, would predominate over common issues. Id. at *31. Since the need to individually address whether each recipient had provided prior consent or received the fax via an online service was substantial, the Magistrate Judge recommended denying the motion for class certification. In Career Counseling, Inc., et al. v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (4th Cir. 2024), the Fourth Circuit affirmed the district court’s conclusion that the plaintiff could not demonstrate an ascertainable class in a case concerning an allegedly unsolicited fax advertisement sent in violation of the TCPA. The Fourth Circuit agreed with the district court that the TCPA was limited only to traditional fax machines and did not apply to unsolicited advertisements sent to online fax services. Thus, class membership must be limited to stand-alone fax machine users and the plaintiff then must be able to demonstrate their ascertainability. Id. at 211. On appeal, the plaintiff argued that the district court erred in rejecting as “deficient” its method of identifying the stand-alone fax machine users and in deeming the class to be “not ascertainable.” Id. To identify which of the nearly 59,000 recipients fax were using stand-alone fax machines and which were using online fax services, the plaintiff sent a subpoena to the telephone carrier associated with each recipient’s fax number. The plaintiff asserted that, based on the responses, at least 20,000 recipients were not provided online fax services by the subpoenaed carriers. Id. However, the defendant offered its own evidence showing that the recipients were not necessarily using stand-alone fax machines just because they were not using an online fax service. Id. Therefore, the district court had found that it would be required to make an individualized inquiry as to whether each recipient was using a stand-alone fax machine at the relevant time. Id. The Fourth Circuit agreed that there was no ascertainable way to determine whether each recipient was using a stand-alone fax machine, and therefore, it affirmed the district court’s ruling denying the plaintiff’s motion for class certification. The plaintiff in Rowan, et al. v. Pierce, 2024 U.S. Dist. LEXIS 74214 (D.P.R. Apr. 19, 2024), filed a class action against the defendant, a former independent presidential candidate, alleging that it violated the TCPA by sending prerecorded messages to consumers, without their consent, during the defendant’s presidential campaign. The plaintiff filed a motion for class certification, proposing a class definition consisting of all U.S. persons receiving calls from specified numbers during a specific period, using specific technology, and appearing on the call list provided by the plaintiff’s expert witness. Id. at *10. The defendant argued that the proposed class failed to meet the numerosity and adequacy requirements of Rule 23, and was not ascertainable. The court agreed. The court found that the plaintiff initially proposed a broad class definition encompassing all individuals in the United States who received prerecorded voicemails from specified phone numbers during a specific period and whose numbers appeared in records purchased from Aristotle. However, due to limitations in the evidence and class definition inconsistencies, the court adjusted the proposed class to include only AT&T subscribers. Id. On the issue of numerosity, the plaintiff claimed there were 153,159 unique cellular numbers that received prerecorded voicemails from the campaign. However, the court found the plaintiff failed to offer evidence to support his calculation of the number of class members and did not respond to the challenges raised by the defendant’s expert regarding the accuracy of call records. Id. at *11-13. The same issues precluded the court from finding that the plaintiff satisfied the ascertainability requirement, as the plaintiff did not provide evidence to support the number of potential class members or explain how the expert’s analysis accurately identified potential class members. Id. at *20. Finally, the court determined that the plaintiff was not an adequate class representative because the plaintiff himself was a Verizon subscriber, and sought to represent a class limited to AT&T subscribers. Id. at *21-22. For these reasons, the court denied the motion for class certification. The court in Hossfeld, et al. v. Allstate Insurance Co., 2024 U.S. Dist. LEXIS 15139 (N.D. Ill. Jan. 29, 2024), denied a renewed motion for class certification brought by plaintiffs accusing Allstate of violating the TCPA by allowing an outside party to solicit ‘do-not-call’ listees on its behalf. The plaintiff alleged that Allstate provided a telemarketer with a list of consumer leads identifying individuals who requested to be placed on Allstate’s internal ‘do-not-call’ list. Id. at *3-4. The court previously had denied the plaintiff’s first motion for class certification on the grounds that the plaintiff failed to show a large enough class to make joinder impractical, as he had identified only 32 potential class members (and a 40-member class is ordinarily required to meet the numerosity requirement for class certification). Id. at *4. In denying the renewed motion, the court found that the

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plaintiff failed to show a material change in circumstances occurred in the time since the first certification motion that warranted revisiting the court’s initial ruling on class certification. Id. at *8. Additionally, the court reasoned that in submitting new arguments and evidence with the second motion for class certification, the plaintiff did not contend that the newly-included arguments and evidence were not available to him at the time of the filing of the first motion. Id. at *9. For these reasons, the court denied the plaintiff’s motion for reconsideration. In Van Elzen, et al. v. Advisors Ignite USA LLC, 2024 U.S. Dist. LEXIS 9079 (E.D. Wis. Jan. 18, 2024), the plaintiff, an insurance agent, filed a class action alleging that the defendant, a marketing company, sent unauthorized voicemails to agents regarding marketing events, such as live insurance seminars, in violation of the TCPA. The plaintiff asserted that Advisors Ignite transmitted more than 15,000 prerecorded ringless voicemail messages to agents. The plaintiff filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The proposed class consisted of thousands of members, which the defendant did not dispute. The court stated that while there is no bright-line rule for numerosity, a class of more than 14,000 was clearly sufficiently numerous under Rule 23(a)(1). Further, the court determined that the plaintiff proposed a way to identify members of the proposed class and had limited their geographic dispersion by including only telephone numbers of certain area codes. The court noted that judicial economy would be served to avoid a multiplicity of actions. The court also opined that the plaintiff met the commonality requirement because he asserted only a single claim under the TCPA, and the violation was common to every member of the proposed class. The defendant argued the alleged phone calls were exempt from TCPA liability because they were “made with the prior express written consent of the called party.” Id. at *8. The defendant contended that class members could have established their consent to receive calls in numerous ways. However, the court stated that the defendant did not present any evidence that the plaintiff, or any class member, provided consent to prerecorded voicemail messages or that either it or the companies from which it purchased its lists of insurance agents obtained such consent. Id. at *10. The court opined that the undisputed evidence suggested that neither the defendant nor the vendors from whom it obtained the lists, ever sought consent to send ringless voicemail messages, presumably because they did not know consent was required under the TCPA. Id. at *12. The court was therefore satisfied that there was a generalized, class-wide manner of proving lack of consent. However, when analyzing the more stringent and related requirement of predominance pursuant to Rule 23(b), the court found that the plaintiff failed to show that as to the issue of standing, common issues of fact predominated. The court noted that the plaintiff assumed that every recipient of a single voicemail suffered the same harm he did, but this was a targeted message, and the individuals receiving it likely had some interest in the information conveyed. Id. at *17. Therefore, individual inquiries into what each class member suffered an injury-in-fact due to the defendant’s conduct would be necessary, such that common issued did not predominate. Accordingly, the court held that a class action would not be superior to other available methods for the fair and efficient adjudication of the controversy, and denied the plaintiff’s motion for class certification. 3. Procedural Issues In TCPA Class Actions In 2024, courts continued to grapple with a variety of procedural issues in the context of the TCPA. In Samson, et al. v. United Healthcare Services Inc., 2024 U.S. Dist. LEXIS 35638 (W.D. Wash. Feb. 29, 2024), the court’s denial of the defendant’s motion to dismiss emphasized the viability of asserting claims from absent class members in class actions. The plaintiff, a Washington state resident, filed a class action alleging that the defendant, a Delaware corporation, violated the TCPA by placing unwanted calls to his cellphone after informing them that they had the wrong number and requested no further contact. The court previously had granted class certification to two nationwide classes. The defendant then argued that the court could not exercise personal jurisdiction over the claims of non-Washington absent class members and must dismiss their claims pursuant to Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017). Bristol-Myers addressed a specific question of whether each plaintiff in a mass tort action, pursuing state law claims in state court, must establish specific jurisdiction over a defendant that is not subject to general jurisdiction in that state. As a result, the court denied the motion. In this context, it explained that “[i]n order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum,” meaning “there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Id. at 262. In this case, the defendant argued that the principals established in Bristol-Myers must also apply to class actions filed in federal court, leading to the dismissal of claims from class members outside Washington due to lack of personal

TCPA Class Action Review – 2025

jurisdiction. The court explained that in a class action, one or more plaintiffs represent a class of similarly- situated individuals who are not necessarily considered parties-in-interest. Hence, absent class members are not considered parties for the purposes of determining diversity jurisdiction. Id. at *6-7. The defendant further claimed that because absent class members have certain due process rights, defendants in class actions should be afforded the due process right to challenge the exercise of personal jurisdiction over of each absent class member’s claim. The court found no rationale or supporting case law supporting this argument. Id. at *11. Further, the defendant contended that Article III requires each plaintiff to demonstrate standing for their claims, implying that absent class members should similarly show a connection between the defendant’s conduct within the forum and their claims. Id. The court pointed out that the defendant was confusing standing and subject matter jurisdiction with personal jurisdiction, noting that there was no authority indicating that absent class members would affect the court’s subject matter jurisdiction analysis. Finally, the defendant argued that the Rules Enabling Act prohibits Rule 23 from overriding jurisdictional limitations, such as Article III standing or personal jurisdiction. Id. at *13. The court reasoned that case law authorities have consistently ruled that nationwide class actions do not abridge any substantive due process rights or the Rules Enabling Act. Id. As a result, the court denied the defendant’s motion to dismiss the non-Washington class members’ claims. The court held that the plaintiff in Thompson, et al. v. Genesco, Inc., 2024 U.S. Dist. LEXIS 3203 (E.D. Mo. Jan. 8, 2024), lacked standing under the TCPA due to his failure to request placement on the defendant’s “do not call” list, thus severing the causal link between his alleged injury and the defendant’s conduct. In this case the court remanded the class action to state court after finding that the plaintiff did not have standing to bring suit under the TCPA because he had not first asked to be placed on the defendant’s “do not call” list. The plaintiff initially filed a lawsuit in state court, alleging that Genesco unlawfully sent numerous unwanted marketing text messages to his cell phone in violation of the TCPA. After Genesco removed the case to federal court, the court questioned whether the plaintiff had standing to sue under Article III and ordered supplemental briefs on the issue. Upon reviewing the arguments, the court explained that the plaintiff suffered cognizable harm when he received unwanted marketing text messages and that the plaintiff’s request relief of damages could make him whole. Id. at *7, 9. However, the court held that there was no causal connection between the plaintiff’s injury and the defendant’s conduct. The plaintiff never asked to be placed on the defendant’s “do not call” list, and thus, was not injured when the company failed to add him to the list. Id. at *14-16. Regardless of whether the defendant maintained a “do not call” list, the court explained, the plaintiff in this case would have suffered the same injury. As a result, the court remanded the action to state court. In Watson, et al. v. Manhattan Luxury Automobiles , Inc., 2024 U.S. Dist. LEXIS 170155 (S.D.N.Y. Sept. 19, 2024), the court addressed the conditions for transfer of consent under the TCPA. The case centered on the practice of the defendant, a car dealership, in sending text messages to former customers of a now-defunct car dealership. The two dealerships were affiliated, and prior to the closure of the defunct dealership, it shared with defendant a list of customer contact information, and sent notifications to its customers about its closure and the service options available through the defendant. These notifications included opt-out options for further communications. The plaintiffs alleged that they did not consent to receiving messages from the defendant, that the calls were placed by an automatic dialing system, and that some of the customers who received messages were on the National Do Not Call Registry (NDNCR). The court granted the defendant’s motion for summary judgment as to the automatic dialing system claim, which disposed of claims that the texting party required prior express written consent under the TCPA. However, for claims regarding the NDNCR, the court concluded that in the absence of “prior express invitation or permission” of an established business relationship, the defendant could not rely on express consent previously provided to the defunct dealership without evidence that the customer intended that consent to extend to the defendant. Id. at *7. This consent must be “evidenced by a signed, written agreement between the consumer and the seller, clearly indicating that the consumer agrees to be contacted by the specific seller and includes the telephone number to which the calls may be placed.” Id. The court determined that the agreements at issue did not meet this standard. While consent may be transferred in certain cases, the court explained the requirement that the language of the agreement make the transfer clear. Id. at *13-14. In this case, there was no explicit indication that the customers had agreed to receive communications from the defendant, including authorizing calls or texts from affiliated entities. Id. Finally, the court emphasized that an established business relationship does not automatically extend to affiliated entities without reasonable expectation from the consumer. Id. at *15-16. As a result, the court found that the plaintiffs could not be found to have consented to receive messages from the defendant, thereby justifying denial of the defendant’s motion for summary judgment on the claims regarding the NDNCR.

TCPA Class Action Review – 2025

4. Rulings Granting Motions To Dismiss For Failure To State A Claim

The court in Andersen, et al. v. Nexa Mortgage, LLC , 2024 U.S. Dist. LEXIS 143293 (C.D. Cal. Aug. 12, 2024), made clear that communications aimed at recruiting for employment do not fall under the TCPA’s definition of unsolicited marketing, and emphasized the importance of factual support for claims involving automated dialing systems and prerecorded messages. In this case the court dismissed the plaintiff’s TCPA claims for failure to state a claim against the defendant. The plaintiff filed a class action alleging that the defendant, a mortgage broker, sent unsolicited communications to the plaintiff even though his cell phone number was registered on the National Do Not Call Registry. Specifically, the plaintiff alleged that he received three unsolicited text messages and one unsolicited phone call describing the benefits of becoming a “Mortgage Banker” with the defendant. The caller purported to be the defendant’s recruiting manager. In response to the plaintiff’s claims that the defendant violated the TCPA’s prohibitions on multiple telephone solicitations within a twelve-month period, the use of an automatic telephone dialing system, and the use of prerecorded calls, the defendant filed a motion to dismiss pursuant to Rule 12(b)(6), which the court granted. First, the court held that the plaintiff failed to state a claim because all of the communications described in the complaint were for the purpose of recruiting the plaintiff for employment, and thus were not solicitations. Id. at *6-7. Second, the court rejected the plaintiff’s automatic telephone dialing system argument because of the lack of factual allegations on the issue in the complaint. Specifically, the court took note of the personalized nature of the text messages, which included the plaintiff’s name. Id. at *9. Similarly, the court found that the plaintiff’s prerecorded phone call claim lacked factual support. The plaintiff made only vague allegations about a “long pause” before the voicemail, which could not substantial the claim that it was a prerecorded message. Id. at *10. The court concluded that without concrete evidence to distinguish between a prerecorded and a live voice, the claim should be dismissed. Accordingly, the court granted the defendant’s motion to dismiss the plaintiff’s claims. In Cacho, et al. v. McCarthy & Kelly LLP , 2024 U.S. Dist. LEXIS 117544 (S.D.N.Y. July 3, 2024), the court highlighted the importance of specifically pleading either direct or vicarious liability. In this case the plaintiff allegedly received multiple calls from a man asking whether he or any of his family members had spent time at Camp Lejune between certain dates and had suffered from health-related issues. After informing the caller of his registration with the Do Not Call Registry and requesting not to be contacted again, the plaintiff contended that he continued to receive at least 30 additional calls over the following weeks. Subsequently, after another call, the plaintiff, using the pseudonym “Alex Rivera,” claimed that his deceased father had been at Camp Lejeune and suffered from a disease. This led to a conversation with William Kelly, a partner at the defendant’s firm, who sent the plaintiff multiple emails regarding potential claims for financial compensation related to the Camp Lejeune situation. Later that day, the plaintiff received a representation agreement from the defendant, which outlined the terms of their potential legal relationship, including a contingency fee structure. However, the plaintiff declined to sign the agreement, and indicated he was not interested in pursuing a claim. The plaintiff then filed the instant action alleging violation of the TCPA. The defendant filed a motion to dismiss for failure to state a claim, which the court granted. The defendant first argued that the plaintiff’s cellphone was not covered under the TCPA because the plaintiff was not a “residential telephone subscriber.” Next, the defendant contended that the calls were not telemarketing solicitations, as they did not encourage the purchase of goods or services. Finally, the defendant challenged the complaint’s sufficiency in alleging that it initiated any calls to the plaintiff or that it can be held vicariously liable for the actions of telemarketers. The court rejected the defendant’s argument that the plaintiff fell outside the TCPA’s protections simply due to the nature of his telephone subscription. Id. at *26. Second, the court ruled that based on the content and context of the alleged calls, the plaintiff adequately pleaded that their purpose was to encourage him to purchase the defendant’s legal services by entering into a representation agreement for claims arising out of injuries sustained at Camp Lejeune. Id. at *36. Finally, the court examined whether the defendant directly placed the telemarketing calls or if it could be held vicariously liable for the actions of telemarketers they allegedly hired. The defendant argued that the plaintiff’s complaint did not explicitly state that it made the calls in question or that they were responsible for the telemarketers’ actions. In response, the plaintiff contended that he has provided enough information to warrant discovery aimed at uncovering the relationship between the telemarketers and the defendant. The court determined that the plaintiff failed to sufficiently allege direct liability, as the claims asserted that the defendant employed anonymous telemarketers to make the calls rather than making them personally. The court stated that while the plaintiff’s complaint included a general claim that the defendant called him numerous times, the plaintiff specifically alleged that the calls were made by third parties, who were not controlled by the defendant. Id. at *46. The court ruled that the plaintiff’s claims failed to establish that the telemarketers were acting with actual

TCPA Class Action Review – 2025

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