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.

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