18th Annual Workplace Class Action Report - 2022 Edition

722 Annual Workplace Class Action Litigation Report: 2022 Edition as they contained a business name and had the obvious intention of promoting a visit to the store in order to make sales. Therefore, the Court ruled that because Defendant’s text messages constituted solicitations and Plaintiff adequately pled that she was a residential subscriber for purposes of the Do Not Call Registry, the motion to dismiss must be denied. Id . at *15. Bilek, et al. v. National Congress Of Employers LLC, 2021 WL 4027512 (N.D. Ill. June 28, 2021). Plaintiff filed a class action against Defendants alleging that they used robocalls in 2018 to solicit sales of healthcare and lifestyle programs in violation of the Telephone Consumer Protection Act (“TCPA”) and the Illinois Automatic Telephone Dialers Act. The Court previously had denied Defendants’ motions to dismiss for lack of personal jurisdiction and for failure to state a claim. Defendants subsequently moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). Id . at *1. Defendants argued that pursuant to the U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. , 140 S. Ct. 2335 (2020) (“ AAPC ”), the TCPA’s robocall ban was unconstitutional and unenforceable as to all robocalls made between Congress’s November 2015 amendment to the ban that exempted robocalls to collect government debt and the Supreme Court’s July 2020 judgment in AAPC that held the ban, as amended by the government-debt exception, violated the First Amendment. Id . The Court held that it did not lack subject-matter jurisdiction, since due to the Supreme Court’s severance of the government-debt exception to the TCPA’s robocall ban, it may not recognize the government- debt exception as ever having been law at all. Thus, the Court determined that the TCPA’s robocall ban was fully and universally enforceable, including against Defendants between 2015 and 2020. Id . at *2. Defendants argued that AAPC could not be applied retroactively in full because doing so would violate the due process rights of government debt collectors. The Court ruled that Defendants were not government debt collectors, and thus Defendants’ alleged robocalls were at all times covered by the TCPA’s ban. For these reasons, the Court denied Defendants’ motion to dismiss. Cranor, et al. v. 5 Star Nutrition, LLC, 998 F.3d 686 (5th Cir. 2021). Plaintiff, a customer, filed a class action alleging that Defendant sent him unsolicited text messages in violation of the Telephone Consumer Protection Act (“TCPA”). The District Court previously had dismissed the complaint for lack of standing because it ruled that a single unwelcome text message sent to a cellular phone and not to a home phone was not an injury-in-fact for purposes of the TCPA. On appeal, the Fifth Circuit reversed and remanded the District Court’s ruling. First, the Fifth Circuit noted that in enacting the TCPA, Congress found that "unrestricted telemarketing can be an intrusive invasion of privacy" and a "nuisance," and thus Plaintiff’s “asserted injury was exactly the one that Congress sought to remediate in enacting the Act.” Id at 690. The Fifth Circuit also explained that the TCPA expressly covers calls and messages made to cellular phones, and thus if the Act solely prohibited nuisances in the home, then it would make little sense to prohibit telemarketing to mobile devices designed for use outside the home. Id . at 691. The Fifth Circuit further determined that Plaintiff’s injury was close in relation to a public nuisance harm that would be actionable under common law. The Fifth Circuit opined that Plaintiff only wanted to utilize telecommunications infrastructure without harassment, and therefore his claim was similar to another person claiming that they wanted to use “another piece of infrastructure like a road or bridge without confronting a malarial pond, obnoxious noises, or disgusting odors . . .” and Defendant was “similar to someone who illegally emits pollution or disease that damages members of the public.” Id . at 692. For these reasons, the Fifth Circuit determined that the single text message was sufficient to confer standing. Accordingly, the Fifth Circuit reversed and remanded the District Court’s ruling as to Defendant’s motion to dismiss. Cunningham, et al. v. Lester, 990 F.3d 361 (4th Cir. 2021). Plaintiff filed a class action against federal employees Deborah Lester, Naomi Johnson, and Jessica Joliffe, in their individual capacities, alleging violations of the Telephone Consumer Protection Act (“TCPA”). The District Court granted Defendants’ motion to dismiss on the grounds that the federal government was the real party in interest and that the government had not waived its sovereign immunity. Id . at 361. On appeal, the Fourth Circuit affirmed the District Court’s ruling. The Affordable Care Act (“ACA”) obliges the U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (“CMS”), to "establish a system" for ensuring that applicants “receive notice of eligibility for an applicable State health subsidy program.” Id . at 363. Defendants argued that they were not the real party in interest because they were working on behalf of the government in a public-private partnership to ensure compliance with the ACA. The Fourth Circuit reasoned that the Defendants were plainly acting in furtherance of a federal mandate. The Fourth Circuit explained that should it allow the case to move forward, the CMS would