18th Annual Workplace Class Action Report - 2022 Edition

726 Annual Workplace Class Action Litigation Report: 2022 Edition that Curaden AG did not even know that Curaden USA planned to use faxes as a method of advertisement, much less that Curaden USA hired a fax broadcaster or created the fax advertisements at issue. Therefore, the Sixth Circuit determined that since Curaden AG clearly lacked knowledge of and involvement in the fax advertisements, it agreed with the District Court’s conclusion that Curaden AG was not a "sender" and thus not liable under the TCPA. Id . at *425. Marshall, et al. v. Grubhub, 2021 U.S. Dist. LEXIS 184291 (N.D. Ill. Sept. 27, 2021). Plaintiff filed a class action alleging that Defendant placed repeated calls to his cellular phone in violation of the Telephone Consumer Protection Act ("TCPA"). Defendant filed a motion to strike the class allegations, which the Court denied as premature. Defendant argued that Plaintiff only offered a conclusory allegation that the calls were conducted with prerecorded or robotic voices. Plaintiff contended that “all or more of the calls to Plaintiff’s cell phone included a robotic or prerecorded voice, and many of these calls left voicemails." Id . at *10. Plaintiff also submitted screenshots and voicemail transcripts. The Court determined that Plaintiff’s allegations and corroborating screenshot satisfied the plausibility standard for the use of a prerecorded voice sufficient to state a claim under the TCPA’s robocall prohibition. Accordingly, the Court denied Defendant’s motion to dismiss. Defendant also argued that the class allegations should be struck from the complaint because Plaintiff’s claims were not typical to those of the other proposed class members. The Court found that Defendant’s argument went beyond the four corners of the complaint and thus could not be considered at the motion to dismiss stage. The Court also determined that Plaintiff’s complaint sufficiently alleged questions common to all class members that would predominate over individual issues. For these reasons, the Court denied the motion to strike the class allegations. McCurley, et al. v. Royal Sea Cruises, Inc., 2021 U.S. Dist. LEXIS 16403 (S.D. Cal. Jan. 28, 2021). Plaintiff filed a class action alleging that Defendant placed unsolicited robocalls to his cellular telephone in violation of the Telephone Consumer Protection Act (“TCPA”). Defendant filed a motion to dismiss pursuant to Rule 12(b)(1), arguing that the U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. , 140 S. Ct. 2335 (2020) (" AAPC "), rendered the TCPA void between the years of 2015 and July 2020. The Court denied the motion. AAPC addressed an amendment to the TCPA that provided an exception for robocalls made to collect debts owed to or guaranteed by the Federal Government, including student loan and mortgage debts. Id . at *3. The decision was authored by Justice Kavanaugh, the Chief Justice and Justice Alito, and concluded that the amendment was unconstitutional because it favored debt-collection speech over political or other speech in violation of the First Amendment, and that the amendment should be severed. Of the remaining Justices, six members of the Supreme Court ruled the amendment unconstitutional, and seven ruled that the robocall restriction should not be invalidated, but instead that the 2015 government- debt exception must be invalidated and severed from the remainder of the statute. Justice Kavanaugh opined that although robocalls made under the exception should not be penalized if made during the time the exemption was in place, “our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.” AAPC , 140 S. Ct. at 2355 n.12. As a result, the Court reasoned that since Plaintiff’s action did not involve the collection of government debt; according to the opinion of Justice Kavanaugh, AAPC did not negate Defendant’s liability. Defendant argued that Justice Kavanaugh’s opinion was mere dicta and should be ignored by the Court. The Court found Justice Kavanaugh’s statement was not dicta and must be followed. The Court declined to lightly dismiss the Supreme Court’s conclusions, and explained that even if Justice Kavanaugh’s statement was dicta, the Court was not at liberty to ignore the pronouncement. The Court concluded that Justice Kavanaugh’s statement that the AAPC decision "does not negate the liability of parties who made robocalls covered by the robocall restriction" if they were not made for the purposes of federal debt collection was not dicta because it was joined by six other justices. Id . at *11. For these reasons, the Court denied Defendant’s motion to dismiss. Mey, et al. v. DIRECTV, LLC, 2021 U.S. Dist. LEXIS 35823 (N.D. W.Va. Feb. 25, 2021). Plaintiff, a former consumer of satellite television service from DIRECTV, filed a class action claiming that Defendant made automated telemarketing calls to her phone number in violation of the Telephone Consumer Protection Act (“TCPA”) even though she was registered with the National Do Not Call Registry. Defendant filed a motion to dismiss, and the Court granted in part and denied in part the motion. Defendant argued that it utilized a list- based dialing system, which was not subject to liability under the robocall ban, and that the practice had been