We’re a quarter of the way through 2020 — even if March may have seemed liked several years unto itself — and it is shaping up to be another big year for TCPA litigation.  We’ve gone through the dozens of TCPA decisions published this year and identified the five most notable cases and storylines that we will be following closely for the rest of 2020.

1. Barr v. American Association of Political Consultants, Case No. 19-631 (SCOTUS): The most significant potential development is whether the TCPA — as we know it today — will even exist at the end of the current Supreme Court term.  As has been widely publicized, the Supreme Court granted cert in early January on a case that has the potential to shake the foundations of the TCPA.  On its face, the case challenges the constitutionality of the government debt exception to the ban on unsolicited calls using an automatic telephone dialing system (“ATDS”).  But the American Association of Political Consultants (“AACP”) has gone further in its briefing, arguing that the entire TCPA should be eliminated, and some commentators have wondered whether the Court might just take the AACP up on that argument.  Because of the potentially high stakes, the case has drawn attention from interested parties nationwide — on April 1, nine different amicus briefs were filed in support of the AACP’s decision.  These briefs are in addition to eight other amicus briefs filed in early March.  The case is currently set for argument on April 22, 2020, but arguments in early April have already been postponed based on COVID-19, and it seems likely that this hearing will be continued as well.  Regardless, we will continue to follow these developments closely.

2. Glasser v. Hilton Grand Vacations Co., Case No. 18-14499 (11th Cir.): Since the D.C. Circuit’s ruling in ACA Int’l v. FCC, 885 F.3d 687, 702–703 (D.C. Cir. 2018), courts nationwide have been wrestling with what it means for the definition of an ATDS.  In September 2018, the Ninth Circuit dealt a significant blow to the TCPA defense bar (and anyone else who favors a rationale interpretation of the statute) by holding that the statutory definition of an ATDS includes a device that stores telephone numbers to be called, regardless of whether those numbers have been generated by a random or sequential number generator.  See Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9^th Cir. 2018).  But in January of this year, the Eleventh Circuit ruled on the side of reason, finding that to be an ATDS, a system must use “randomly or sequentially generated numbers.”  Glasser v. Hilton Grand Vacations Company, LLC, 948 F.3d 1301 (11th Cir. 2020) (overturning district court’s grant of summary judgment).  Given that Marks and Glasser are directly at odds, Supreme Court review seems inevitable — if the TCPA survives the AACP case.

3. Physicians Healthsource, Inc. v. Cephalon, Inc., Case No. 18-3609 (3rd Cir.): For as long as the TCPA has been in existence, defendants have cried foul about the manner in which some TCPA plaintiffs bait companies into sending them unsolicited faxes — “The fax number is on their website!” “The fax number is on their signature block!” “The fax number was on his business card!”  We have heard all of those and more.  Courts typically reject this as evidence of consent.  But a promising new decision out of the Third Circuit might change that.  In Physicians Healthsource, Inc. v. Cephalon, Inc., the Court held that when the plaintiff “voluntarily provided a business card with a fax number on it to” defendants, the plaintiff “knowingly released the number such that the provision was an invitation to be contacted.”  2020 WL 1501949, *4 (3d Cir. March 30, 2020) (affirming district court’s grant of summary judgment).  This is a defense to keep in mind, particularly in the Third Circuit.

4. Eldridge v. Pet Supermarket, Inc., Case No. 18-22531 (S.D. Fla.): The topic of standing has been an ongoing battle in TCPA cases, particularly since Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).  Many courts have held that even technical violations of the TCPA are sufficient to meet the “concrete injury” requirement for standing.  But in Eldridge v. Pet Supermarket, Inc., the court granted the defendant’s motion to dismiss, holding that receipt of a handful of text messages was insufficient to establish a concrete injury.  2020 WL 1475094, *5 (S.D. Fla. Mar. 10, 2020).  Specifically, the Court rejected the plaintiff’s argument that the text messages infringed on his privacy, wasted his time, and intruded upon his seclusion.  Id.  The court also rejected arguments related to cell phone battery and data plan usage.  Id. at *7.

5. Sandoe v. Boston Scientific Corp., Case No. 18-11826 (D. Mass.): Even the most compliant companies have struggled with how to avoid liability when a consumer consents but then changes his or her number, thus creating potential liability for calls or messages sent to the next owner of the phone number.  The FCC’s attempt to address this through the “one-call” rule was half-baked at best and was rejected by the D.C. Circuit in ACA.  But there is now a published decision out of the U.S. District of Massachusetts supporting a “reasonable reliance” defense under the TCPA.  See Sandoe v. Boston Scientific Corp., 2020 WL 94064 (D. Mass. Jan. 8, 2020) (granting summary judgment for defendant).  The Court held that “[a]lthough the text of the TCPA does not provide for reasonable reliance, this Court finds persuasive the FCC’s order emphasizing that the TCPA does not require the impossible of callers.  It is unclear what else, if anything, [defendant] could have done to ensure the numbers of the clinic patients had not been reassigned.”  Id. at *4.

Even in these trying times, we will continue to monitor these cases and many more to keep you apprised of any developments that could affect you or your clients.