TCPA Class Action Review – 2025

In line with the previous decisions, the court’s ruling in Monson, et al. v. McClenny, Moseley & Associates, PLL, 2024 U.S. Dist. LEXIS 45664 (S.D. Tex. Feb. 23, 2024), further illustrates the broad scope of the TCPA. The plaintiff, a homeowner, filed a class action alleging that the defendants, a Texas law firm and Velawcity, an Arizona-based legal marketing firm, improperly solicited clients in Louisiana following hurricanes in 2020 and 2021 in violation of the TCPA. The defendants moved to dismiss, arguing that the plaintiff lacked standing to bring the claims. The Magistrate Judge recommended that the defendant’s motion be denied. The plaintiff asserted that Velawcity had allegedly sent unsolicited communications, including text messages and emails, to thousands of individuals telling recipients that they had a pending claim for hurricane storm damage. The messages contained a hyperlink to a form and directed recipients to complete the form to claim compensation. Id. at *4. These messages allegedly failed to disclose that the communications were, in fact, advertising material for the defendant law firm. Id. The Magistrate Judge determined that the plaintiff sufficiently alleged a cognizable injury-in-fact, including invasion of privacy and intrusion upon seclusion. Id. at *8. The Magistrate Judge determined that the plaintiff’s allegations stated plausible violations of the Texas anti-barratry statute and would not be futile. Accordingly, the Magistrate Judge recommended that the defendants’ motion to dismiss be denied. 7. Appellate Decisions Affirming Dismissal Of TCPA Claims In affirming the dismissal of a TCPA action, the Second Circuit in Soliman, et al. v. Subway Franchisee Advertising Fund Trust, Ltd., 101 F.4th 176 (2d Cir. 2024), held that a system must generate phone numbers in order to be considered an automatic telephone dialing system (ATDS); moreover, it held that text messages are not covered by the prohibition on artificial or prerecorded voices. The plaintiff filed a class action alleging that the defendant violated the TCPA by sending unsolicited text messages using an ATDS and an artificial or prerecorded voice. The defendant filed a motion to dismiss and the district court granted the motion. On appeal, the Second Circuit affirmed the district court’s ruling. The plaintiff asserted that the defendant sent several automated marketing text messages to her cell phone using a system that employed a pre-existing list of phone numbers. Although the plaintiff had previously consented to receive such messages from the defendant, she then opted-out by texting “STOP.” The plaintiff contended that she subsequently received another automated message. The district court ruled that the defendant’s system did not violate the TCPA because it used a pre- existing list of numbers rather than generating numbers randomly or sequentially. Id. at 179. The TCPA defines an ATDS as equipment that either stores or produces telephone numbers using a random or sequential number generator. Since the defendant’s system did not generate numbers but used stored numbers, it did not meet this definition. The district court also found that the TCPA’s prohibition against artificial or prerecorded voices does not apply to text messages. Id. at 180. The Second Circuit agreed. It held that the defendant’s text messaging system did not violate the TCPA. The Second Circuit explained that the TCPA prohibits systems that generate random numbers, not those that use pre-existing lists, and that text messages are not covered by the prohibition on artificial or prerecorded voices. Id. at 184, 187. Accordingly, the Second Circuit affirmed the district court’s ruling granting the defendant’s motion to dismiss.

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