18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 725 occurred during the period of time when the TCPA was unconstitutional, Defendant asserted that the Court lacked subject-matter jurisdiction. Plaintiff argued that Defendant raised “an issue that had no bearing on this litigation," and that the Supreme Court’s decision in AAPC related to the constitutionality of TCPA’s robocall provision, specifically, 47 U.S.C. § 227(b)(1)(A)(iii), and did not apply to the separate subsection at issue in this case, i.e., the TCPA’s National Do Not Call Registry provision at 47 U.S.C. § 227(c)(5). Id . at *5-6. The Court reasoned that AAPC did not conclude that the entire TCPA was unconstitutional, as it did not consider the constitutionality of 47 U.S.C. § 227(c), the only provision of the TCPA at issue in this action. Thus, the Court concluded that § 227(c) remained "fully operative as a law" during the intervening years between the 2015 amendment and the Supreme Court’s decision. Id . at *8. For these reasons, the Court denied Defendant’s motion to dismiss. Lindenbaum, et al. v. Realgy, LLC, 2021 U.S. App. LEXIS 27159 (6th Cir. Sept. 9, 2021). Plaintiff filed a class action alleging that Defendant placed two robocalls to her cellular telephone in violation of the Telephone Consumer Protection Act (“TCPA”). The District Court previously had granted Defendant’s motion to dismiss. On appeal, the Sixth Circuit reversed and remanded. Although robocalls were banned in the 1990s, Congress attempted to enact an amendment to those prohibitions to allow robocalls if they were made "solely to collect a debt owed to or guaranteed by the United States." Id . at *2. In Barr v. AAPC, 140 S. Ct. 2335 (2020), the U.S. Supreme Court thereafter found that the amendment was unconstitutional because adding the exemption for government-debt robocalls would cause impermissible content discrimination. The Supreme Court further held in Barr that the exception was severable from the rest of the restriction, thereby leaving the general prohibition intact. Id. The District Court had ruled in this action that Plaintiff lacked standing to bring her claims because that severability was a remedy that operates only prospectively, so the robocall restriction was unconstitutional and therefore "void" for the period at issue, and therefore Plaintiff’s claims could not provide a basis for federal- question jurisdiction. Id. at *3. The Sixth Circuit determined that the District Courts themselves do not change statutes, and the Constitution itself displaces unconstitutional enactments. Id . at *4. The Sixth Circuit reasoned that unconstitutional enactments are not law at all, and therefore when a District Court conducts a severability analysis, it is interpreting what, if anything, the statute meant from the start in the absence of the always- impermissible provision. Id. at *6. The Sixth Circuit opined that the severability of the exception was not a remedy, and therefore in order to operate prospectively only it would have to be a legislative act, which it was not. The Sixth Circuit thus ruled that the District Court erred in concluding that the severability was a remedy such that it would only apply prospectively. Defendant also argued that under the First Amendment, government-debt collectors have a due-process defense to liability because they did not have fair notice of their actions’ unlawfulness. The Sixth Circuit found no First Amendment issue as whether a debt collector had fair notice that it faced punishment for making robocalls because that would turn on whether it reasonably believed that the statute expressly permitted its conduct. The Sixth Circuit found that it was not a speech restriction, but a restriction of the legality of the conduct in general. Accordingly, the Sixth Circuit reversed and remanded the District Court’s ruling granting Defendant’s motion to dismiss. Lyngaas, et al. v. Curaden AG, 992 F.3d 412 (6th Cir. 2021). Plaintiff, a dental office employee, filed a class action alleging that Defendants’ two unsolicited fax advertisements violated the Telephone Consumer Protection Act (“TCPA”). The District Court granted Defendant’s motion for summary judgment on the basis that Plaintiff could not pierce the corporate veil to hold Curaden AG liable for Curaden USA’s action that faxes received by a computer over a telephone line (in addition to faxes received by traditional fax machine) violated the TCPA, and that it had personal jurisdiction over both Defendants. Following a bench trial, the District Court held that Curaden USA violated the TCPA by sending the two unsolicited fax advertisements to Plaintiff, but that Curaden AG was not liable as a "sender" under the TCPA. Id . at 413. On appeal, Sixth Circuit affirmed the District Court’s ruling. Plaintiff received on his workplace fax machine unsolicited faxes advertising the Curaprox Ultra Soft CS 5460 toothbrush, which was manufactured by Curaden AG, a privately owned Swiss entity. Curaden USA, an Ohio corporation headquartered in Arizona, was a subsidiary of Curaden AG that promoted Curaden AG products, including the Curaprox Ultra Soft CS 5460 toothbrush, throughout the United States. Id . at 419. Curaden USA was the exclusive distributor of products in the United States. However, Curaden USA never presented its advertising materials to Curaden AG for review or approval. Curaden USA planned a fax campaign as part of its marketing efforts which led to the faxes at issue that Plaintiff received. Curaden AG did not have knowledge of, or involvement with, the campaign. The Sixth Circuit noted that the undisputed evidence showed