18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 721 Vernado, et al. v. West Liberty Foods, 2021 U.S. Dist. LEXIS 1065 (N.D. Ill. Jan. 5, 2021). Plaintiff, a former employee, filed a class action alleging that Defendant violated the Illinois Biometric Information Privacy Act, ("BIPA") by implementing a biometric fingerprint timekeeping system without its employees’ prior written consent. Id . at *1-2. Defendant filed a motion to dismiss the claims as untimely, or in the alternative, to stay the litigation pending the future decision of the Illinois Appellate Court in Tims v. Black Horse Carriers , which would address whether a one-year or five-year limitations period applies to claims under the BIPA. The Court granted the motion to stay. It determined that the statute of limitations issue was central to the question of whether Plaintiff’s BIPA claims were timely filed. Thus, the Court ruled that issuing a stay until the limitations issue was resolved by the Illinois Appellate Court would significantly advance judicial economy. Further, the Court noted that briefing in Tims was complete and therefore there would be no lengthy delay and no prejudice to the parties. Accordingly, the Court granted Defendant’s motion to stay. (lxxiv) TCPA Class Actions Barry, et al. v. Ally Financial, Inc. , 2021 U.S. Dist. LEXIS 129573 (E.D. Mich. July 13, 2021). Plaintiff filed a class action alleging that Defendant violated the Telephone Consumer Protection Act (“TCPA”) by placed cellular calls to her without her consent. Plaintiff alleged that the calls were unsolicited but were directed to her, on behalf of her brother, and Plaintiff did not allege that Defendant used a random or sequential number generator. The Court previously had stayed the matter pending the U.S. Supreme Court’s ruling in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021). The Supreme Court’s ruling held “that a necessary feature of an autodialer under § 227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called." Id . at *2-3. The Court thereafter lifted the stay and found that the decision in Facebook controlled over Plaintiff’s claims in this case and thereby dismissed Plaintiff’s claims. The Supreme Court had determined in Facebook that "[t]o qualify as an ‘automatic telephone dialing system,’ a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator." Id . at *5. Plaintiff conceded that her number was likely stored in Defendant’s database, and thus the calls placed to her were not made using an automatic telephone dialing system. However, Plaintiff argued that her TCPA claims were not "conclusively precluded" so long as the dialing system at issue had the capacity to store or produce numbers using a random or sequential number generator, even if it did not actually randomly or sequentially generate numbers. Id. at *7. Defendant argued that the definition required "actual use of a random or sequential number generator." Id . at *8. The Court reasoned that because the calls were directed to Plaintiff specifically and purposefully, related to her brother’s account with Defendant, the technology that called her used a stored list containing the names and numbers of persons to be contacted, and was not random as it would not know which account was related to the call recipient. Id . at *9. The Court opined that all of Defendant’s calls were targeted at specific individuals to attempt to collect loan repayments. Plaintiff thus alleged only that Defendant called in connection with specific accounts held by Defendant for a specific purpose, and not through randomly or sequentially generated numbers. Id . at *19. For these reasons, the Court held that Plaintiff failed to plausibly plead that Defendant’s dialing system used a random or sequential number generator to make calls to her. Accordingly, the Court granted Defendant’s motion to dismiss Plaintiff’s claims. Barton, et al. v. Tenescal Wellness LLC, 2021 U.S. Dist. LEXIS 42211 (D. Mass. March 8, 2021). Plaintiff filed a class action alleging that Defendant placed unsolicited text messages using an automatic dialing system (“ATDS”) to her cellular telephone even though her number was listed on the Do Not Call Registry in violation of the Telephone Consumer Protection Act (“TCPA”). Defendant filed a motion to dismiss for failure to state a claim, which the Court denied. Plaintiff contended that she received two text messages to her cellular phone, which she used as a land line, which stated "Temescal Wellness: EXTENDED HOURS ALL LOCATIONS! Today & tomorrow all locations open early @ 9am and staying open til 8pm.” Id . at *1-2. As a result, the Court determined that Plaintiff plausibly alleged that Defendant alleged sufficient facts to assert that Defendant used an ATDS, i.e. , that the texts were generic, used a shortened web link, and that the texts were commercial in nature. The Court found that these allegations met the Rule 12(b)(6)’s minimal plausibility standard. Further, the Court ruled that Plaintiff plausibly alleged that her cell phone number was registered on the Do Not Call Registry. The Court inferred that since the Do Not Call Registry was only open to residential subscribers and taking all reasonable allegations in Plaintiff’s favor, Plaintiff thereby sufficiently pled that she was a residential subscriber for the purposes of her mobile phone number. Finally, the Court held that the texts were solicitations,