18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 727 allowed by other case law authorities. The Court disagreed. It determined that the exemptions noted by Defendant made clear that autodialers using list-based dialing systems were covered by the statute. The Court reviewed pertinent case law, which concluded that "the plain text of the section, read in its entirety, makes clear that devices that dial from a stored list of numbers are subject to the autodialer ban." Id . at *18. The Court opined that "whatever Congress’s purpose may have been at the time of enactment, language in the statute indicates that equipment that made automatic calls from lists of recipients” was covered by the TCPA. Id . at *19. For these reasons, the Court denied Defendant’s motion to dismiss. Moser, et al. v. Benefytt, Inc., 2021 U.S. App. LEXIS 23661 (9th Cir. Aug. 10, 2021). Plaintiff filed a class action alleging that Defendant placed unwanted robocalls to his cellular telephone in violation of the Telephone Consumer Protection Act (“TCPA”). The District Court granted class certification of two nationwide classes pursuant to Rule 23. On appeal, the Ninth Circuit vacated and remanded the District Court’s ruling. Defendant argued on appeal that the District Court lacked personal jurisdiction over the claims of non-California Plaintiffs under Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017). Plaintiffs contended that Defendant had waived its personal jurisdiction defense by not raising it at the motion to dismiss stage, and therefore certification of nationwide classes was appropriate. The District Court did not address the merits of Defendant’s personal jurisdiction argument under Bristol-Myers , holding that the defense was waived, and thus granting class certification. The Ninth Circuit explained that the question before it was whether, at the motion to dismiss stage, it was an "available" Rule 12(b) defense that the District Court lacked personal jurisdiction over unnamed, non-resident putative class members. The Ninth Circuit concluded that it was not. The Ninth Circuit reasoned that the essence" of Rule 12(g) and 12(h) is that "a party ‘who by motion invites the District Court to pass upon a threshold defense should bring forward all the specified defenses [personal jurisdiction, improper venue, insufficient process, or insufficient service] he then has and thus allow the court to do a reasonably complete job.’" Id . at *12. The Ninth Circuit opined that when filed, a class action only includes the claims of the named Plaintiff or Plaintiffs, not claims of unnamed class members. Taking these two points together, the Ninth Circuit concluded that there was not an “available” defense of personal jurisdiction to the claims of unnamed putative class members who were not yet parties to the case. The Ninth Circuit reasoned that the defense of lack of personal jurisdiction was not available at the motion to dismiss stage such that Defendant was able to assert it. Accordingly, Defendant could not have moved to dismiss on personal jurisdiction grounds the claims of putative class members who were not then before the Court, nor was Defendant required to seek dismissal of hypothetical future Plaintiffs. Id . at *14. The Ninth Circuit thus found it appropriate to vacate the District Court’s class certification order for it to analyze whether it had personal jurisdiction over the out-of-state Plaintiffs’ claims. Poonja, et al. v. Kelly Services, 2021 U.S. Dist. LEXIS 186809 (N.D. Ill. Sept. 29, 2021) . Plaintiff filed a class action alleging that Defendant, a staffing company, sent him an unauthorized text message using an autodialer in violation of the Telephone Consumer Protection Act (“TCPA”). Defendant filed two motions to dismiss, which the Court denied. The text message in question advertised a job opening at a warehouse. Plaintiff alleged that Defendant advertised job listings for thousands of businesses nationwide in an effort to assist those businesses to fill open positions. Defendant argued that Plaintiff failed to satisfy the basic requirements of notice pleading under Rule 8, because he did not adequately pled that the text message in question was generated by an autodialer. Defendant also filed a separate motion to dismiss, arguing that the Court lacked subject-matter jurisdiction on the basis of the U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants , 140 S. Ct. 2335 (2020) (“ AAPC ”), which invalidated the government debt exception to the TCPA, thus essentially rendered the entire autodialer restriction in the TCPA unconstitutional and unenforceable. Id . at *3. The Court rejected both arguments. First, the Court determined that Plaintiff’s allegations plainly showed that a text was sent to Plaintiff. The Court noted that since there was no way to determine whether or not an autodialer was used in making the text without receiving that information from Defendant, Plaintiff’s allegations of a generic message – sent by a 1-833 number, with "STOP" and "text back" functionality – sufficed to survive a motion to dismiss. Id . at *9. The Court also ruled AAPC “does not negate the liability of parties who made robocalls" between 2015 and the date of the . . . decision. Id . at *10. The Court explained that the Sixth Circuit and the overwhelming weight of pertinent case law authority had concluded that severing the 2015 amendment from the rest of the TCPA left intact the autodialer restriction. The Court noted that the majority of the Supreme Court in AAPC concluded that the entire 1991 robocall restriction should not be invalidated, but rather that the