On October 15, 2021, the U.S. District Court for the District of Massachusetts entered a final order approving a $14 million class action settlement resolving claims against HelloFresh for alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. The named plaintiffs alleged that HelloFresh violated the TCPA by (1) placing telemarketing calls to consumers whose phone numbers were listed on the federal Do Not Call registry; (2) placing telemarketing calls to consumers using an automatic telephone dialing system (“ATDS”) without prior express written consent; and (3) placing telemarketing calls to consumers who had requested to be placed on Hello Fresh’s internal Do Not Call list. According to plaintiffs’ attorneys, this settlement is the largest TCPA class action settlement in Massachusetts state history.

Notably, the settlement was reached in or around November 2020, with the Motion for Preliminary Approval filed on November, 22, 2020, which is six months before the U.S. Supreme Court issued its landmark TCPA decision in Facebook, Inc. v. Duguid. The Facebook decision held that, to be an ATDS, a device must have the capacity to generate numbers randomly and sequentially – mere storage of phone numbers is not enough. The Facebook decision is likely to spark a shift in TCPA litigation away from claims relating to the use of an ATDS, to lawsuits asserting allegations similar to those alleged in the HelloFresh case (i.e., based on calls placed to phone numbers listed on the Do Not Call registry). As reported on the Hunton Retail Blog, there also is an increase in litigation at the state level asserting violations of state telemarketing laws, with an emphasis on the use of telemarketing text messages.