Justia Class Action Opinion SummariesArticles Posted in Communications Law
LUCINE TRIM V. REWARD ZONE USA LLC, ET AL
Plaintiff appealed from the district court’s partial judgment granting a motion to dismiss in favor of Defendant, Reward Zone USA, LLC (Reward Zone), in a putative class action lawsuit brought under the Telephone Consumer Protection Act (TCPA). In Plaintiff’s second cause of action, which is the subject of this opinion, Plaintiff alleged a violation of the TCPA because she received at least three mass marketing text messages from Reward Zone which utilized “prerecorded voices.” The Ninth Circuit affirmed the district court’s dismissal. The court held the text messages did not use prerecorded voices under the Act because they did not include audible components. The panel relied on the statutory context of the Act and the ordinary meaning of voice, which showed that Congress used the word voice to include only an audible sound, and not a more symbolic definition such as an instrument or medium of expression. The panel addressed Plaintiff’s appeal of the district court’s dismissal of another cause of action under the Telephone Consumer Protection Act in a simultaneously-filed memorandum disposition. View "LUCINE TRIM V. REWARD ZONE USA LLC, ET AL" on Justia Law
City of Creve Coeur v. DirecTV LLC
DirecTV and Dish Network (“Defendants”) provide video services in part through the Internet. The City of Creve Coeur filed this class action in Missouri state court on behalf of local government authorities, seeking a declaratory judgment that Defendants are liable under the Video Services Providers Act (“VSPA”) and implementing local ordinances, plus injunctive relief, an accounting of unpaid fees, and damages. Defendants removed the action based on diversity jurisdiction and the Class Action Fairness Act (CAFA). After the state court entered an interlocutory order declaring that VSPA payments are fees, rather than taxes, DirecTV filed a second notice of removal, arguing this order established the required federal jurisdiction. The district court granted Creve Coeur’s motion to remand. The Eleventh Circuit affirmed on different grounds. The court explained that the district court’s remand order plainly stated that the remand was based on comity principles as articulated in Levin, not on “state-tax based comity concerns.” Comity as a basis to remand was raised and fully argued in the first remand proceeding. Federal courts have long precluded two bites at this apple. Second, the Supreme Court in Levin emphatically stated that the century-old comity doctrine is not limited to the state-tax-interference concerns that later led Congress to enact the TIA. Third, the state court’s December 2020 Order addressed, preliminarily, only the VSPA fee-or-tax issue under state law. It did not address the broader considerations comity addresses. The state court order in no way overruled or undermined the basis for the district court’s first remand order. Therefore, DirecTV failed to establish the essential basis for a second removal. View "City of Creve Coeur v. DirecTV LLC" on Justia Law
City of Maple Heights v. Netlix, Inc.
The Supreme Court held that Netflix Inc. and Hulu, LLC (together, Defendants) were not video-service providers under the Fair Competition in Cable Operations Act, Ohio Rev. Code 1332.21 (the Act) and that the Act did not expressly or impliedly give the City of Maple Heights the authority to bring a cause of action such as the one at issue in this case.The City of Maple Heights filed a federal class action and declaratory judgment lawsuit against Netflix and Hulu in federal court asserting that Defendants were in violation of the Act. Defendants moved separately to dismiss the complaint on the grounds that their streaming services did not fall within the Act. The federal court certified two state-law questions for Supreme Court review. The Court answered (1) Netflix and Hulu were not service providers under Ohio law; and (2) the Act did not grant Maple Heights either an express or an implied right to bring an action against Defendants to enforce Ohio's video service provider provisions. View "City of Maple Heights v. Netlix, Inc." on Justia Law
Gorss Motels, Inc. v. Brigadoon Fitness Inc.
Gorss operated a Super 8 Motel as a franchisee of Wyndham. Gorss agreed to furnish the facility in accordance with Wyndham’s standards and to purchase supplies and equipment from approved vendors. Brigadoon sells fitness equipment and is an approved vendor for Wyndham franchisees. Wyndham periodically provided contact information for its franchisees, including fax numbers, to Brigadoon. Gorss also attended trade shows and personally provided contact information to Wyndham-approved suppliers. Gorss received a fax from Brigadoon advertising its fitness equipment. The fax was sent to more than 10,000 recipients. Brigadoon formulated the list of recipients from a variety of sources.Gorss filed a purported class action under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(c), seeking statutory penalties. The district court declined to certify a class, finding that common issues did not predominate. The Seventh Circuit affirmed, rejecting Gorss’s argument that the court should have required Brigadoon to show with specific evidence that a significant percentage of the class is subject to the “prior permission” defense. Gorss offered no generalized class-wide manner to resolve the permission question. Brigadoon’s claim of permission was not speculative, vague, or unsupported; it was based on a multitude of contracts, relationships, memberships, and personal contacts. View "Gorss Motels, Inc. v. Brigadoon Fitness Inc." on Justia Law
Hood v. American Auto Care, et al.
Alexander Hood, a Colorado resident, appealed the dismissal for lack of personal jurisdiction of his putative class-action claim against American Auto Care (AAC) in the United States District Court for the District of Colorado. AAC, a Florida limited liability company whose sole office was in Florida, sold vehicle service contracts that provided vehicle owners with extended warranties after the manufacturer’s warranty expires. Hood’s complaint alleged AAC violated the Telephone Consumer Protection Act (TCPA) and invaded Hood’s and the putative class members’ privacy by directing unwanted automated calls to their cell phones without consent. Although he was then residing in Colorado, the calls came from numbers with a Vermont area code. He had previously lived in Vermont, and his cell phone number had a Vermont area code. Hood was able to trace one such call to AAC. Although it determined that Hood had alleged sufficient facts to establish that AAC purposefully directs telemarketing at Colorado, the trial court held that the call to Hood’s Vermont phone number did not arise out of, or relate to, AAC’s calls to Colorado phone numbers. In light of Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021), the Tenth Circuit determined the trial court's dismissal could not stand. "The argument regarding 'purposeful direction' ... is implicitly rejected by Ford, and the argument regarding 'arise out of or relate to' ... is explicitly rejected. ... We also determine that AAC has not shown a violation of traditional notions of fair play and substantial justice." View "Hood v. American Auto Care, et al." on Justia Law
Cordoba v. DIRECTV, LLC
Plaintiff filed a class action under the Telephone Consumer Protection Act, alleging that DIRECTV and the company it contracted with to provide telemarketing services, Telecel, failed to maintain the do-not-call list and continued to call individuals who asked not to be contacted.The Eleventh Circuit vacated the district court's certification order, holding that the unnamed members of the putative class who did not ask DIRECTV to stop calling them were not injured by the failure to comply with the regulation. Therefore, their injuries were not fairly traceable to DIRECTV's alleged wrongful conduct, and thus they lacked Article III standing to sue DIRECTV. The court also held that, although the case was justiciable because the named plaintiff had standing, the district court abused its discretion in certifying the class as it is currently defined. In this case, determining whether each class member asked Telecel to stop calling requires an individualized inquiry, and the district court did not consider this problem at all when it determined that issues common to the class predominated over issues individual to each class member. Accordingly, the court remanded for further proceedings. View "Cordoba v. DIRECTV, LLC" on Justia Law
Alpha Tech Pet, Inc. v. Lagasse, LLC
The lead plaintiffs in consolidated purported class actions received faxed advertisements that allegedly did not comply with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227 and the Federal Communication Commission’s Solicited Fax Rule. Each district court refused to certify the proposed class, largely on the authority of the D.C. Circuit’s 2017 decision in Bais Yaakov of Spring Valley v. FCC, regarding the validity of the FCC’s 2006 Solicited Fax Rule. The Seventh Circuit affirmed. At a minimum, it is necessary to distinguish between faxes sent with permission of the recipient and those that are truly unsolicited. The question of what suffices for consent is central, and it is likely to vary from recipient to recipient. The district courts were within their rights to conclude that there are enough other problems with class treatment here that a class action is not a superior mechanism for adjudicating these cases. View "Alpha Tech Pet, Inc. v. Lagasse, LLC" on Justia Law
Weitzner v. Sanofi Pasteur, Inc.
On April 21, 2004, and March 22, 2005, Defendants sent unsolicited faxes to Dr. Weitzner’s office. Weitzner filed a putative class action in Pennsylvania state court under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(C), including at least one fax sent to Weitzner. The proposed class included all individuals “who received an unsolicited facsimile advertisement from defendants between January 2, 2001[,] and the date of the resolution of this lawsuit.” In June 2008, the court denied class certification. The case continues as Weitzner's individual action. Defendants stopped sending unsolicited faxes in April 2005. In 2011, Weitzner and his professional corporation (Plaintiffs) brought individual claims based on the same faxes, plus class claims similar to those alleged in state court. The court dismissed, concluding that the four-year federal default statute of limitations, 28 U.S.C. 1658, applicable. The Third Circuit affirmed, rejecting a claim under the Supreme Court’s “American Pipe” holding that the timely filing of a class action tolls the applicable statute of limitations for putative class members until the propriety of maintaining the class is determined. American Pipe permits putative class members to file only individual claims after a denial of class certification and does not toll the limitations period for named plaintiffs like Weitzner. Any judgment in favor of Weitzner P.C. would benefit only Dr. Weitzner. Applying tolling to P.C.’s claims would effectively allow Weitzner to pursue his claims for a second time outside the limitations period. View "Weitzner v. Sanofi Pasteur, Inc." on Justia Law
McCabe v. Caribbean Cruise Line, Inc.
In 2011-2012 a million people received phone calls asking them to take political surveys in exchange for a chance to go on a free cruise. Some recipients filed a class action under the Telephone Consumer Protection Act, 47 U.S.C. 227, seeking damages from defendants who had not placed the calls but had directed them. The district court certified a class and later granted plaintiffs partial summary judgment. The parties settled. Plaintiffs agreed to release their claims against all defendants and their agents. Defendants agreed to pay into a fund between $56 million and $76 million, depending on the number of approved claims submitted. Out of the fund will come payments to the class, incentive awards to the named representatives, about $2 million in administrative expenses, and attorneys’ fees. The class will receive payments in two rounds. If some claimants do not cash the checks during the second round, remaining funds will go to “an appropriate cy pres recipient.” Over the objections of a class member, the court approved the settlement, estimating that each claimant will receive $400. Class counsel will receive 36% of the first $10 million, 30% of the next $10 million, 24% of the next $36 million, and 18% of any additional recovery. The Seventh Circuit affirmed, rejecting arguments that the award of fees overcompensates class counsel and that the settlement’s approval was improper. View "McCabe v. Caribbean Cruise Line, Inc." on Justia Law
Health One Medical Center v. Bristol-Myers Squibb Co.
Mohawk, a seller of prescription drugs sent junk faxes to medical providers, advertising the seller’s prices on Bristol-Myers and Pfizer drugs. A recipient filed a putative class-action lawsuit under the Telephone Consumer Protection Act, which makes it unlawful “to send . . . an unsolicited advertisement” to a fax machine, 47 U.S.C. 227(b)(1)(C). Plaintiff first asserted claims only against Mohawk, which never answered the complaint. The district court entered a default judgment. Plaintiff then amended its complaint to assert claims against Bristol and Pfizer, arguing that they had “sent” the unsolicited faxes simply because the faxes mentioned their drugs. The Sixth Circuit affirmed the dismissal of the complaint. To be liable, a defendant must “use” a fax machine or other device “to send . . . an unsolicited advertisement” to another fax machine. Bristol and Pfizer neither caused the subject faxes to be conveyed nor dispatched them in any way; only Mohawk did those things. Bristol and Pfizer, therefore, did not “send” the faxes and thus have no liability for them. View "Health One Medical Center v. Bristol-Myers Squibb Co." on Justia Law