Duane Morris Class Action Review - 2023 - Report - Page 365
defendant’s TCPA compliance procedures were successful to provide the defendant a
complete defense pursuant to the so-called “safe harbor” provision of the TCPA. Id. at
*5. The court agreed. It granted summary judgment on both of these bases. The court
concluded that the plaintiff had consented to being called and that the defendant’s
procedures shielded it from liability. The safe harbor provision – which applies only to
claims brought under the TCPA’s prohibition on contacting numbers registered on the
DNC list – states that if an entity has violated that provision, it can avoid liability if the
call was placed in error and that “as part of its routine business practice,” the entity
meets various standards set forth in 47 C.F.R. § 64.1200(c)(2)(i)A-(E), including: (i)
written procedures to comply with the national do-not-call rules; (ii) training of personnel
on those procedures; (iii) maintenance of a list of phone numbers that the entity cannot
contact; (iv) the use of “a process to prevent telephone solicitations to any telephone
number on any list established pursuant to the do-not-call rules;” and (v) the use of “a
process to ensure that it does not sell, rent, lease, purchase or use the national do-notcall database or any part thereof, for any purpose except compliance with this section
and any such state or federal law to prevent telephone solicitations to telephone
numbers registered on the national database. Id. at *13. Based on its review of the
record, the court determined that the defendant “produced significant evidence that as
part of its routine business practice, it complies with the standards required by the safe
harbor provision and had substantially complied with the purpose of the TCPA.” Id. at
*14. Because of those procedures, the court held that the defendant would be shielded
from liability even if it had made an error in contacting the plaintiff at a number on the
DNC.
F.
Appellate Decisions Upholding Denial Of Class Certification
One decision in the Second Circuit that stood out this past year is Bais Yaakov Of
Spring Valley, et al. v. Educational Testing Services, 2022 U.S. App. LEXIS 30131 (2d
Cir. Oct. 31, 2022), where the defendant served a one two punch, successfully
defeating class certification for three putative classes and thereafter mooting plaintiff’s
individual claim by offering to deposit more than the maximum amount Plaintiff could
recover. The plaintiff brought a class action alleging that the defendant violated the
TCPA when it allegedly sent solicited and unsolicited fax advertisements to it and
thousands of others without the proper opt-out notice. In a series of decisions, the
district court disposed of the plaintiff’s class allegations, leaving only the plaintiff’s
individual claim for $10,500 in statutory damages and injunctive relief prohibiting the
defendant from further violating the TCPA. In an effort to moot the plaintiff’s individual
claims, the defendant sent a $12,000 check to the plaintiff, which was couched as an
“unconditional payment.” Id. at *2. The defendant then asked the district court to dismiss
the plaintiff’s request for injunctive relief as either moot or meritless, or to order that the
defendant be enjoined from sending faxes to the plaintiff that violate the TCPA. Despite
the plaintiff’s objections, the district court entered judgment in the plaintiff’s favor and
found the plaintiff’s request for injunctive relief to be meritless, leading to the dismissal
of the case for lack of subject-matter jurisdiction. On appeal, the plaintiff argued that the
district court erred in denying class certification and improperly dismissed its individual
claims. Reviewing the denial of class certification for abuse of discretion, the Second
Circuit affirmed the judgment of the district court entirely. First, the Second Circuit
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Duane Morris Class Action Review – 2023
