Cases of Note

TCPA Claims Dismissed for Lack of Personal Jurisdiction, Failure to Allege an Agency Relationship

The Western District of Texas recently dismissed TCPA claim for the Plaintiff’s failure to allege an agency relationship between the Defendant company, and the third-party who actually placed the calls at issue. Plaintiff sued Defendant Wide Merchant Investment (“WMI”), a corporation offering merchant advances to small businesses, its CEO David Boem Joon Kim, and Synergy Financial (“Synergy”) for calls made to Plaintiff by Synergy, an independent sales organization. Plaintiff alleged that Synergy called him in violation of the TCPA multiple times at the behest of Defendant. Defendant moved to dismiss for lack of personal jurisdiction and failure to state a claim.

After quickly holding that it did not have general jurisdiction over the non-resident Defendants, the Court proceeded to analyze whether it possessed specific jurisdiction over WMI and Kim, asking whether the case ar[ose] out of or result[ed] from the defendant’s forum-related contacts.” Although the Court concluded that the phone calls and text messages that Plaintiff received were forum-related contacts, it ultimately held that they were not the Defendants’ contacts, [as] the calls and messages came from Synergy.”

To establish Defendant’s contacts with the state, the Plaintiff must have plead that an agency relationship exist[ed]” between the non-resident Defendants and Synergy. For an agency relationship to exist, Plaintiff must have plausibly alleged that Synergy manifest[ed] assent to [Defendants] that [Synergy] shall act on [Defendants’] behalf and subject to [Defendants’] control.” The Court found, however, that the Defendants did not exercise any control over the means and methods by which Synergy carrie[d] out its duties” and that Defendants had no control over Synergy’s marketing campaign, how Synergy obtained leads, and what Synergy said during calls.” Further, no one at the Defendant company had any knowledge of any sort of calls made by Synergy, and that [Defendants] did not know, and had never received any complaints, of Synergy making telemarketing calls in violation of the TCPA.” Indeed, the contract at-issue allowed both parties to terminate at any time, forbid Synergy from using the logo, trademark, or name of Defendants’ business without consent, and, most notably, did not specify how Synergy would market the Defendants’ services. Plaintiff’s allegations could not support a direct agency relationship sufficient to maintain jurisdiction.
The Court also concluded that no apparent authority or ratification existed, as neither WMI nor Kim held Synergy out as possessing authority to make calls on their behalf,” and Defendants attested that they did not know of any calls made by Synergy in potential violation of the TCPA prior to the lawsuit. The Court, therefore, dismissed the claim for lack of personal jurisdiction.
Callier v. Wide Merch. Inv., Inc., No. EP-22-CV-00123-FM, 2023 WL 3167440 (W.D. Tex. Apr. 27, 2023)

Following Trial, Court Rejects Double Recovery; Holds TCPA Damages Limited to One Violation per Call under Section 227(c)(5) for a Single Call or Text; Rejects Willful or Knowing” Damages
Following trial before the Northern District of Texas, the jury found Plaintiff established that defendant called and texted Plaintiff in violation of the TCPA’s Do-Not-Call proscriptions. Plaintiff then moved for judgment on the jury verdict to establish that the jury’s findings also suffice to establish Plaintiff is entitled to damages on his Internal Do-Not-Call claim. During trial on Plaintiff’s individual claim, Plaintiff presented evidence of a number of communications from Defendant that violated the TCPA, including ten texts and three calls made while Plaintiff was registered on the National Do-Not-Call registry, and four messages after Plaintiff requested that Defendant stop calling him. The jury ultimately awarded the statutory penalty of $500 per violation for all seventeen of those claims. However, for the four calls after Plaintiff asked to be placed on the Defendant’s internal Do-Not-Call list, the jury awarded Plaintiff $500 for both the Federal DNC and Internal DNC violations for the same call. Plaintiff moved to enforce the jury’s award of damages and seek recovery for violations for both violations under Section 227(c)(5).
The Court, finding that Plaintiff point[ed] to no case law that permits a plaintiff to recover damages for multiple violations under Section 227(c)(5) for a single call or text” held that unlike Sections 227(b), a Plaintiff cannot recover damages for multiple violations for a single call or text under Section 227(c)(5). Analyzing several circuit court panels, the Court adopted the Sixth Circuit’s reasoning in Charvat v. GVN Mich., Inc., 561 F.3d 623 (6th Cir. 2009) and reasoned that the statutory language of Section 227(c)(5) unambiguously allows for statutory damages on only a per-call basis.”

The Court additionally rejected the Plaintiff’s request for treble damages under Section 227(c)(5)(C), as the evidence presented supported nothing more than a finding of negligence on the part of the Defendant, and not a knowing or willful violation” required for treble damages under Section 227(c)(5)(C).

Noviello v. Adam Wines Consulting, LLC, No. 3:22-CV-52-BN, 2023 WL 2776696 (N.D. Tex. Apr. 4, 2023)
Kelley Drye Client Wins Motions for De-Certification of Class and Dismissal Based on Plaintiff’s Lack of Standing

A Florida Appellate Court recently de-certified a class and directed dismissal of a TCPA claim filed against Kelley Drye client Pet Supermarket, Inc. The Plaintiff visited a Pet Supermarket store where he voluntarily entered into a promotion in which a customer could text the word PETS” to a phone number and be entered into a contest to win free dog food for a year. Plaintiff then received a total of six text messages from Defendant. Plaintiff filed a class action against Defendant, originally in the Southern District of Florida. The Southern District of Florida, pursuant to Salcedo v. Hanna (previously discussed here), dismissed the complaint for lack of standing, holding that Plaintiff’s allegations of loss of privacy, wasted time, and intrusion upon seclusion resulting from the receipt of the messages did not constitute an injury in fact for Article III standing purposes. Plaintiff then filed the same TCPA suit in Florida state court, where the trial court found that Plaintiff had standing because he need only allege a violation of his statutory rights under the TCPA.” On appeal, the Florida Appellate Court reversed.
The Court first noted that the Florida Supreme Court has adopted a standing requirement that, while not as constrained by the hard floor’ of injury in fact imposed by Article III,” still requires Florida plaintiffs to allege an injury-in-fact,” consisting of an actual or imminent injury that is concrete, distinct, and palpable.” Additionally, class representatives in Florida must illustrate that a case or controversy exists between him or her and the defendant,” requiring allegations of an actual or legal injury.” Thus, Plaintiff must still allege a concrete harm or injury from the TCPA violation to demonstrate his standing in a Florida state court.”
Having determined that Plaintiff must allege an actual injury,” the Court concluded that Plaintiff had failed to do so. Rather, Plaintiff’s allegations that the texts constituted a barrage of messages,” and that the texts caused him to incur repeated aggravation by annoying him” were merely conclusory recitation of harms.” Additionally, despite Plaintiff’s allegations that the texts intruded upon his seclusion,” the Court held that Plaintiff must show that the intrusion was highly offensive to a reasonable person for the harm to be comparable to injury suffered by an intrusion upon seclusion under Florida common law.” Plaintiff’s receipt of one text message, while at home, during the weekend, simply [did] not rise to the level of outrageousness required for an invasion of privacy.”
Because the Court determined that Plaintiff failed to allege a concrete injury, it held that Plaintiff lacked standing, and accordingly reversed the certification of Plaintiff’s proposed class and directed the lower court to dismiss the case.

Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (Fla. Dist. Ct. App. May 10, 2023)
Florida Legislature Draws the Reigns on Mini-TCPA

On May 2, the Florida Senate approved House Bill 761, which significantly amends the Florida Telephone Solicitation Act (“FTSA”). The bill is designed to serve as a clarification” to the 2021 amendments to the FTSA, which provided a private right of action with damages of damages of $500 to $1,500 per prohibited call or text message. Upon being signed by Governor Ron DeSantis, the amendment will limit liability and narrow the private cause of action under the statute. This includes:

  • Amending the definition of an autodialer such that violations only occur where the automated system is used to both select and dial telephone numbers;
  • Prohibiting only unsolicited calls;
  • Expanding what constitutes express written consent, including checking a box or another act; and
  • Creating a safe harbor of 15 days for a party to stop solicitations.

The amendment notably clarifies the standard for the key term autodialer,’ which was unclear under the 2021 version of the FTSA. The bill also specifies that only unsolicited calls are prohibited, defining the term as a telephonic sales call other than a call response to an express request of the person called[.]” Next, it broadens the actions that constitute a signature’ for prior express consent to receive calls and texts. Before this bill, the FTSA defined a signature” as an electronic or digital signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.” Once the bill is signed, checking a box for consent, or responding affirmatively to a text or email will now constitute express prior consent. Finally, the act creates a 15-day safe harbor’ where a party seeking to bring a lawsuit for unsolicited text messages must first notify the solicitor by replying with an opt-out request, and give the solicitor 15 days to cease. If signed, the bill is likely to strongly impact the wave of class action lawsuits that followed the 2021 amendments to the FTSA. The law will take effect immediately upon the Governor’s signature.