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Just over halfway through 2023, nationwide TCPA jurisprudence is focused on further delineating the scope of the TCPA. As the dust settles from earlier battles over defining ATDS requirements, the cases from this year are largely aimed at establishing who can bring a claim under the TCPA and what conduct the statute covers. We summarize here developments since our last update, listed in alphabetical order by topic area.Advertisements – Mauthe v. Millennium Health LLC, 58 F.4th 93 (3rd Cir. Jan. 19, 2023): The Third Circuit determined that the “unsolicited advertisement” requirement does not include offers for free services. Plaintiff attempted to argue that although the fax it received from defendant promoted an entirely free educational seminar, it had the ultimate goal of enhancing the defendant’s profits by opening the door to other paid products and services. The court reasoned that the “unsolicited advertisement” element is an objective standard that must “promote goods or services to be bought or sold and have profit as an aim.” Neither the fax nor the seminar itself promoted any goods or services for sale, and so the court affirmed summary judgment for the defendant, finding that the free seminar was not a pretext for a later solicitation.  Importantly, the court noted that this case lacked the hallmarks of a pretextual solicitation because neither the presenter nor the slides discussed pricing for goods or services offered, and the defendant did not contact attendees after the seminar.Class Actions – Sorsby v. TruGreen L.P., Case No. 20-cv-2601, 2023 U.S. Dist. LEXIS 3345 (N.D. Ill. Jan. 9, 2023):Earlier this year, a defendant’s reliance on the established business relationship defense was a determinative factor in the denial of class certification in a TCPA suit. Generally, a defendant will not be liable under the TCPA for unwanted solicitations where it has an unterminated, established business relationship with the plaintiff. In Sorsby, the named plaintiff alleged that she had terminated her business relationship with the defendant, but it remained unclear whether all other class members had done the same. The court found that the availability of the defense to each class member was too individualized of an inquiry to satisfy Rule 23’s predominance requirement and so granted the motion to strike class action allegations.  Consent – Coleman v. Humana, Inc., No. 5:22-CV-321-BO, 2023 WL 3485242 (E.D. Cal. May 16, 2023): The Eastern District of North Carolina granted a motion to dismiss where plaintiff’s amended complaint failed to properly allege that he did not consent to prerecorded telephone calls. The calls at issue here arose out of a Medicare Part D plan offered by defendant, which required it to establish a medication therapy management program with more thorough enrollment and opt-out requirements than other communications. Because the enrollment and opt-out requirements here were more involved than typical telemarketing schemes, the court found that plaintiff’s complaint did not adequately allege that he properly revoked consent and opted out. The dismissal here reflects that courts will engage in fact-sensitive analysis to determine whether claims brought under the TCPA satisfy pleading requirements.Damages – Noviello v. Adam Wines Consulting, LLC, No. 3:22-CV-52-BN, 2023 WL 2776696 (N.D. Tex. Apr. 4, 2023): In Noviello, the court held that a plaintiff can only recover damages once for a single text message. In other words, even if the sending of one communication violated both the automated call section of the TCPA (§ 227(b)) and the do-not-call-list section (§ 227(c)), only one assessment of damages is permitted under the TCPA. After reviewing the Sixth Circuit’s interpretation of Section 227(c)(5) in Charvat v. GVN Mich., Inc., 561 F.3d 623, 631 (6th Cir. 2009), the court agreed with the Sixth Circuit’s holding that the TCPA does not allow for the award of statutory damages for multiple violations during a call, but instead limits statutory damages to one award per call.Standing – Hall v. Smosh.com, No. 22-16216, 2023 U.S. App. LEXIS 16623 (9th Cir June 30, 2023): The Ninth Circuit recently handed down a decision of this case,  reversing the lower court’s dismissal based on lack of standing. (We addressed the prior lower court ruling in <a href="https://www.mediaandprivacyriskreport.com/2022/12/tcpa-turnstile-2022-year-in-review-tcpa-case-update-vol-17/">our last recap</a>.) On appeal the court disagreed with the Eastern District of California, and held that the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry had Article III standing to bring a claim under the TCPA based on the phone’s alleged receipt of unsolicited text messages.

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Media & Privacy Risk Report

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TCPA Turnstile: Scoping out the TCPA – 2023 Midyear Update (TCPA Case Update Vol. 18)

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