TCPA Connect

California TCPA Defendant Gets Mixed Rulings

A California federal court judge issued a pair of rulings resulting in a split decision for Telephone Consumer Protection Act defendant Dick's Sporting Goods.

Although the court denied the national retailer's motion to dismiss the lawsuit, it also denied the plaintiff's attempt to certify a nationwide class of text message recipients.

Phillip Nghiem alleged that he enrolled in Dick's mobile alerts program by texting the word "JOIN" in February 2015 and later texted the word "STOP" in December 2015 to remove himself from the program. Dick's responded with a text confirming his unsubscription. But according to Nghiem, he continued to receive messages from Dick's (at least nine texts) through January 2016.

Based on these text messages, he filed a putative class action alleging violations of the TCPA. The parties then filed pretrial motions: a motion to dismiss from Dick's arguing that the plaintiff lacked standing, and a motion from the plaintiff to certify a class represented by Nghiem.

U.S. District Court Judge Cormac J. Carney denied both motions.

First, he disagreed with Dick's that Nghiem had not alleged a concrete and particularized injury in fact as required by Article III of the Constitution and rejected the defendant's interpretation of Spokeo v. Robins, the U.S. Supreme Court's ruling on standing in the context of the Fair Credit Reporting Act.

"In contrast with a FCRA violation, which 'may result in no harm,' a TCPA violation entails inherent harms sufficient to establish injury in fact," Judge Carney wrote. "The TCPA codified a remedy for injuries that already existed in order to curb the problem of unwanted telemarketing calls."

The court cited a series of cases from federal courts in California, Illinois, and West Virginia for support and found contrasting case law not persuasive. "In this case, Nghiem alleges a concrete and particularized injury by laying out the elements of a TCPA violation," the court said. "Additionally, Nghiem alleges that his privacy was invaded when he received text messages from [Dick's] after opting out of its mobile alerts program. This is precisely the type of harm that the TCPA was enacted to prevent."

Judge Carney also refused to dismiss the case based on Dick's argument that Nghiem lacked prudential standing. Dick's argued that the plaintiff's interests were not within the "zone of interests" that the TCPA was intended to protect. The defendant's argument relied upon extrinsic evidence regarding Nghiem's character and motivation for filing and litigating the action. However, according to the court, what matters in the early stages of the litigation are the allegations in Nghiem's complaint.

The court did, however, consider the plaintiff's motivation and character when it turned to the motion to certify a class in the suit.

A plaintiffs' attorney who handles consumer and debtor disputes, Nghiem has represented plaintiffs in TCPA cases on at least six occasions and enrolled in several promotional campaigns that have been challenged by his law firm. He did not take advantage of any promotions through Dick's mobile alerts program, the defendant noted, and just two weeks after he enrolled, his firm sent a demand letter to the retailer complaining of TCPA violations that occurred to a client prior to Nghiem signing up for the program.

"Clearly, the typical member of the class does not share Nghiem's background and experience with the TCPA and [Dick's] mobile alerts program," Judge Carney wrote. "While Nghiem's Complaint alleges that his privacy rights were violated, Defendants' evidence calls into question whether Nghiem could in fact have suffered an invasion of privacy if he signed up for [Dick's] mobile alerts program for the specific purpose of finding a TCPA violation that could support the lawsuit."

Concerned about the danger that Nghiem would be preoccupied with defenses unique to him—and not focused on the issues and defenses relevant to the class—the court denied the plaintiff's motion to certify a class. "Simply stated, Nghiem cannot fairly and adequately protect the interests of the class as is required by Rule 23(a)," the court concluded.

To read the order denying the defendant's motion to dismiss in Nghiem v. Dick's Sporting Goods, Inc., click here.

To read the order denying the plaintiff's motion for class certification, click here.

Why it matters: Faced with a novel issue regarding a plaintiff's motivation in bringing a case, Judge Carney rejected Nghiem's motion for class certification since his role as both lead plaintiff and counsel would require him to address defenses that would be unique to him, thus failing the "typicality" requirement for certification under Federal Rule 23(a).

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TCPA Fax Suit Settles for $9.25M

Multimillion-dollar Telephone Consumer Protection Act settlements continue, with a Louisiana federal court judge recently granting final approval to a $9.25 million deal in a case involving fax advertisements.

Jefferson Radiation Oncology LLC accused Advanced Care Scripts (ACS) of violating the statute by sending thousands of unsolicited fax messages nationwide over a five-year period to advertise its medications and services without the required opt-out notification.

The defendant responded that it had express permission from a substantial majority, if not all, of the fax recipients to receive the ads. The company also filed claims against the fax broadcasting company it used to send the faxes and petitioned for a retroactive waiver for any violation of the opt-out notice requirements from the Federal Communications Commission.

After discovery, the parties agreed to mediation and ultimately reached a settlement agreement in early 2016. Pursuant to the terms, ACS will pay $9.25 million to class members, who do not need to submit claims to receive payment. Instead, they will receive compensation based on the number of successful fax transmissions reflected in records maintained and produced by the defendant.

U.S. District Court Judge Lance M. Africk granted preliminary approval of the deal and certified a class of "all persons and entities that received facsimile transmissions from ACS or its vendor that allegedly advertise, promote, or describe ACS's products or services, and do not contain the statutorily required opt-out notice during the time period of April 29, 2011 to February 19, 2016."

Once payment has been made for settlement administration costs, attorney's fees of $1.85 million and costs of just over $24,000, as well as a $20,000 incentive award for Jefferson Radiation, the approximately 24,000 class members will receive the remainder of the settlement funds. Any remaining money will be given to the American Cancer Society as a cy pres beneficiary.

In December, Judge Africk gave his final approval to the agreement, noting that no members of the settlement class had objected and only one class member opted out.

To read the memorandum in support of unopposed motion for preliminary approval of settlement and class certification in Jefferson Radiation Oncology v. Advanced Care Scripts, click here.

To read the order granting final approval, click here.

Why it matters: This case is a reminder for any company that transmits facsimile advertisements to include a TCPA compliant opt-out notice. Simply informing fax recipients of their right to opt-out and the method for doing so is not enough. The opt-out must conform in all respects to prescribed FCC regulations or else risk challenge by aggressive plaintiffs and their counsel.

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