Duane Morris Class Action Review - 2023 - Report - Page 368
constituted an “unsolicited advertisement” subject to the TCPA, as amended by the
Junk Fax Protection Act of 2005 (JFPA). As the Second Circuit explained, the defendant
is a for-profit limited liability company that conducts market research through surveys to
collect information for its clients. The district court granted the defendant’s motion to
dismiss on the grounds that “[t]he Faxes...are requests for information which ‘do not
advertise the ‘commercial availability or quality’ of anything. Instead, they seek
to obtain something -the [plaintiff]’s survey responses.’” Id. at 374. The Second Circuit
affirmed the district court’s order, finding it critical that neither of the facsimiles sought to
sell anything or even to promote the quality of the defendant’s market research
services. The Second Circuit criticized and rejected recent Third Circuit precedent that
referenced an encyclopedia definition of “commercial transaction” in its finding that
market research facsimiles constitute “unsolicited advertisements” under the TCPA.
See Fischbein v Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020) (holding that
the fax – which solicited participation by recipients in a market research survey for pay –
was an “unsolicited advertisement” because healthcare professionals have a need for
protection from such unsolicited faxes). In Katz, the Second Circuit disagreed with
Fischbein by stating that “[t]he notion that such faxes might advertise the availability of a
‘service’ - i.e., of the recipient’s participation in a survey - contorts the ordinary meaning
of the statute too far.” Katz, 22 F.4th 368 at 373.
Another noteworthy decision that applied a stringent application of standing is Drazen,
et al. v. Pinto, 2022 WL 2963470 (11th Cir. July 27, 2022), where the Eleventh Circuit
confirmed that absent putative class members must have Article III standing. The class
plaintiffs alleged a TCPA violation where GoDaddy.com sent prohibited marketing text
messages and cell phone calls. As part of the settlement, the parties submitted a class
definition that limited the putative class to those individuals receiving voice messages or
text messages facilitated by multiple software applications, programs and platforms that
GoDaddy.com used. The Eleventh Circuit reversed the district court’s order granting the
class settlement approval. On the issue of standing, the Eleventh Circuit held that the
class definition did not meet Article III standing requirements based in part on Frank, et
al. v. Gaos, 139 S. Ct. 1041 (2019), which held that standing must exist at every stage
of litigation, including at the settlement stage of a class action. The Eleventh Circuit held
that whether absent class members can establish standing may be exceedingly relevant
to the class certification analysis required by Rule 23. It reasoned that the standing
analysis should be addressed at the certification stage, in Rule 23, rather than as a
standalone requirement under Article III of the Constitution. Thus, all plaintiffs within the
class definition must have standing to recover individual damages.
H.
Appellate Descisions Vacating TCPA Class-Wide Judgments
The largest TCPA jury verdict involved in an award of $925 million. The defendant
successfully overturned the verdict on appeal. In Wakefield, et al. v. ViSalus, Inc., 51
F.4th 1109 (9th Cir. 2022), the plaintiffs filed a class action alleging that the defendant
made unlawful telephone calls using prerecorded voice messages in violation of the
TCPA. Following a trial, the jury returned a verdict in favor of the plaintiffs and found
that the defendant sent over 1.8 million prerecorded calls to class members without
prior express consent. Accordingly, the jury awarded the minimum statutory damages at
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Duane Morris Class Action Review – 2023
