Since our last TCPA update at the end of August, the biggest news has obviously been the Marks v. Crunchcase – you can read our thoughts on that case here. But that was not the only meaningful case decided in the last month or so. Decisions continue to roll in on critical issues such as class certification, the definition of an ATDS, and the viability of negotiated settlements. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order.

• ATDS:  The Crunch decision, while the most notable, was not the only recent decision to address the question of what constitutes an ATDS under the TCPA.  And many courts have ruled in favor of the defendants on that issue. For example, in Fleming v. Associated Credit Servs., 2018 U.S. Dist. LEXIS 163120, *33 (D.N.J. Sept. 21, 2018), the court granted summary judgment for the defendant, finding that a LiveVox Human Call Initiator System was not an ATDS.  See also Montinola v. Synchrony Bank, 2018 U.S. Dist. LEXIS 146716, *1 (D.N.J. Aug. 28, 2018) (dismissing case where plaintiff failed to plausibly allege use of an ATDS); Gonzalez v. Ocwen Loan Servicing, LLC, 2018 U.S. Dist. LEXIS 153480, *22 (M.D. Fla. Sept. 5, 2018) (holding that “a device only qualifies as an ATDS under the TCPA if it has the present ability to generate random or sequential telephone numbers and dial them” and dismissing the complaint); Glasser v. Hilton Grand Vacations Co., LLC, 2018 U.S. Dist. LEXIS 162867, *17 (M.D. Fla. Sept. 24, 2018) (granting summary judgment to defendant on ATDS issue).

• Class Certification: At least three courts have recently denied motions for class certification in TCPA cases.  See  Sawyer v. KRS Global Biotechnology, Inc., 2018 U.S. Dist. LEXIS 150586, *11 (S.D. Ohio Sept. 5, 2018) (denying class certification in a TCPA fax case because individualized issues of consent predominated over classwide issues); KHS Corp. v. Singer Fin. Corp., 2018 U.S. Dist. LEXIS 143337, *15 (E.D. Pa. Aug. 23, 2018) (same); Tomeo v. Citigroup, Case No. 13-cv-4046 (N.D. Ill. Sept. 27, 2018), at p. 29 (denying class certification in an ATDS case based on individualized issues of consent and partially striking the testimony of a popular TCPA plaintiffs’ expert).

• Settlement Approval: Courts have also started pushing back on classwide settlements.  In Snyder v. Ocwen Loan Servicing, Case No. 14-cv-8461 (N.D. Ill. Sept. 28, 2018), the court denied final approval in a classwide settlement, holding that “[o]n the record before the Court, it is fair to say that there is a good chance that class counsel have sold the case short—at least, the Court cannot determine otherwise on the present record.”  Id., p. 14.  Similarly, in Douglas v. Western Union Co., 2018 U.S. Dist. LEXIS 148892, *38 (N.D. Ill. Aug. 31, 2018), the court approved the class settlement, but substantially reduced the requested attorneys’ fees, taking class counsel to task for inappropriate conduct in the case, reporting “hours [that] seemed excessive for a case that was barely litigated before going to mediation,” and providing time records that were “highly suspect.”

• Standing: In Gorss Motels, Inc. v. Am. Tex-Chem Corp., 2018 U.S. Dist. LEXIS 144754 (D. Conn. Aug. 22, 2018), the defendant argued that the plaintiff lacked standing because it failed to allege a cognizable injury sufficient to confer Article III standing.  But the court rejected this argument, holding that the plaintiff’s allegations related to the receipt of unsolicited faxes were sufficient to show harm.  Id. at *9.

• Survivorship: The issue of whether TCPA claims survive the death of the plaintiff is an open question. In Sharp v. Ally Fin., Inc., 2018 U.S. Dist. LEXIS 154007, *55 (W.D.N.Y. Sept. 10, 2018), the court found that plaintiff’s claim did not abate upon his death and allowed plaintiff to substitute a new plaintiff.