TCPA Class Action Review – 2025

class counsel could recover the full amount of the attorneys’ fees sought. The class members, however, recovered only if they submitted claims. Id. Finally, the district court declined to apply class CAFA-mandated scrutiny and procedures, which was an error as the settlement allowed the class members to choose a cash award instead of a voucher. Id. at 1343. For these reasons, the Eleventh Circuit vacated the judgment, and remanded to the district court for further proceedings. 6. Rulings Denying Motions To Dismiss TCPA Class Actions For Failure To State A Claim The court’s ruling in Vallesillo, et al. v. Money Tree Merchant Services Corp., 2024 U.S. Dist. LEXIS 97600 (D. Neb. May 23, 2024), illustrates the low standard for a plaintiff to survive a motion to dismiss. The plaintiff filed a class action alleging that the defendant sent unsolicited text messages in violation of the TCPA. The defendant filed a motion to dismiss pursuant to Rule 12(b)(6) and Rule 12(b)(1), which the court denied. The plaintiff asserted that the defendant sent him unsolicited text messages promoting cash advances without his consent even though his phone number was listed on the federal Do-Not-Call list. The defendant contended that the plaintiff’s phone number was registered as a business line, not a residential number, and provided evidence, including text message exchanges and registration details showing his phone number was associated with a business. The court determined that the plaintiff had standing to bring his claim because he alleged a concrete injury under the TCPA, related to the unsolicited messages he received. Id. at *11. The court stated that evidence showing that his phone number was registered as a business did not change his standing because he alleged that he used the phone number for personal use. The court also considered whether the plaintiff’s claims under the TCPA were plausible. The court concluded that the plaintiff’s allegations that he used the phone number for personal communication supported his claim that it was a residential number. Id. at *24–26. Therefore, the court ruled that the plaintiff plausibly stated a claim for a violation of the TCPA. Accordingly, the court denied the defendant’s motion to dismiss. The court’s decision in Hudson, et al. v. Palm Beach Tan, Inc., 2024 U.S. Dist. LEXIS 165676 (M.D.N.C. Aug. 12, 2024), to deny the defendant’s motion to dismiss emphasizes the broad scope of the TCPA, affirming that violations on cell-phones and through text messages are actionable under the law. Despite placing his number on the national Do-Not-Call registry, the plaintiff asserted that he received repeated text-message solicitations from the defendant, who operates a tanning salon. Further, the plaintiff allegedly requested that the messages stop, but the solicitations continued, and the plaintiff filed a class action alleging that the defendant violated the TCPA. The defendant moved to dismiss, arguing that the TCPA’s provisions only applied to residential landlines, not cell phones, and that it pertained solely to voice calls, not text messages. The Magistrate Judge recommended denying the motion to dismiss on both arguments. First, the court noted that many recent cases allow cell phones to be considered as residential phones under the TCPA. Id. at *7. Additionally, the court pointed out that the TCPA and its regulations explicitly apply to wireless numbers, thereby allowing cell phone users to benefit from its protections. Turning to the defendant’s argument that text messages did not qualify as “telephone calls,” the court found that the statutory language of the TCPA, as well as FCC regulations, supported treating cell phones as residential phones. Id. at *16-17. In rejecting this argument, the court explained that text messages can establish a claim under the TCPA for two primary reasons: (i) that receiving text messages can cause injury under § 227(c)(5) of the TCPA; and (ii) the statutory language of the TCPA, along with FCC regulations, indicates that text messages fall within the scope of the TCPA. Id. The TCPA protects residential users’ privacy rights against unsolicited communications, including messages designed to promote goods or services. The court explained that the definition of “telephone solicitation” includes messages, and the FCC has clarified that the regulations governing telemarketing apply to text messages sent to wireless numbers. Id. at *22. The defendant also sought dismissal of the claims related to internal do-not-call lists based on the belief that the relevant regulation did not allow for a private right of action. However, the court concluded that individuals can sue for violations of Internal Do Not Call (IDNC) regulations under the TCPA. Ultimately, the Magistrate Judge recommended denying the defendant’s motion to dismiss, finding that text messages and IDNC violations sufficient asserted claims under the TCPA. The court subsequently adopted the Magistrate Judge’s recommendation and denied the defendant’s motion to dismiss in Hudson, et al. v. Palm Beach Tan, Inc., 2024 U.S. Dist. LEXIS 164763 (M.D.N.C. Sept. 13, 2024). The court agreed with the Magistrate Judge’s report in its entirety and thereby adopted the findings that the plaintiffs’ allegations regarding violation of the TCPA were sufficient to state a claim.

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