As we head into 2019, there are plenty of reasons for optimism in the TCPA defense bar. Courts nationwide have continued to interpret the ACA v. FCC ruling favorably to defendants at both the motion to dismiss and summary judgment stages, and there have been other positive TCPA decisions during the past month as well. But unfortunately, it is not all good news.  At least three courts have certified TCPA class actions in the past month. Although the facts of each case are obviously critical to assessing the propriety of class certification, we always prefer to see class certification denied in these sorts of cases.  Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order.

• ATDS: Federal district courts continue to weigh in on the meaning of the D.C. Circuit’s ruling in ACA v. FCC and how it impacts the standard for determining whether the defendant used an automatic telephone dialing system (ATDS) to call a plaintiff. In Richardson v. Verde Energy USA, Inc., 2018 WL 6622996, *8 (E.D. Pa. Dec. 17, 2018), the court granted the defendant’s motion for summary judgment, finding that a predictive dialing device that merely dials numbers from a stored list of numbers is not an ATDS. This is significant because many courts had held, before ACA, that a predictive dialer was an ATDS even if it did not generate numbers randomly or sequentially to be called. Similarly, in Collins v. National Student Loan Program, 2018 WL 6696168, *4–5 (D.N.J. Dec. 20, 2018), the court granted summary judgment for defendant on the ATDS issue because the court held that a LiveVox Human Call Initiator did not have the “present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.” See also Asher v. Quicken Loans, Inc., 2019 WL 131854, *2 (D. Utah Jan. 8, 2019) (granting motion to dismiss for failure to plead ATDS);  Thompson-Harbach v. USAA Federal Savings Bank, 2019 WL 148711, *14 (N.D. Iowa Jan. 9, 2019) (granting summary judgment for defendant on ATDS issues); Johnson v. Yahoo!, Inc., 2018 WL 6426677, *2 (N.D. Ill. Nov. 29, 2018) (granting summary judgment for defendant on ATDS issues based on motion for reconsideration after ACA decision).

• Class Certification: The court in Bauman v. Saxe, 2019 WL 157923, *2 (D. Nev. Jan. 10, 2019), certified a class consisting of “[a]ll past, present, and future customers of a … Defendant who reside in the United States or its territories and whose cellular telephone numbers were sent a text message by Defendant which promoted a product, good, or service of a [ ] Defendant.” And in Northrup v. Innovative Health Ins. Partners, LLC, 2019 WL 77413, *8 (M.D. Fla. Jan. 2, 2019), the court certified a class consisting of “[a]ll cellular telephone subscribers in the United States who had a phone number listed in the Call Logs …, where the Call Logs’ entry for the phone number reflects that the June 30, 2017 ‘Obama Care’ text message was ‘delivered’ in the ‘Status’ column; and where the phone number was assigned to a cell phone (as opposed to a landline or VoIP line) on June 30, 2017.” See also Kron v. Grand Bahama Cruise Line, LLC, 2018 WL 6710032, *1 (S.D. Fla. Dec. 13, 2018) (granting class certification, where defendant filed no opposition). But in better news for the TCPA defense bar, the court in Wilson v. Badcock Home Furniture, 2018 WL 6660029, *6 (M.D. Fla. Dec. 19, 2018), became the latest court to deny class certification of a TCPA claim on the basis of consent, finding that the individualized issue of whether a consumer consented to be called predominates over the common issues. Similarly, just as we were preparing our last TCPA case law report in December, the Seventh Circuit affirmed denial of class certification in a TCPA fax case, holding that issues related to waivers of the Solicited Fax Rule, as well as “issues concerning solicitation, permission, pre-existing relationships, and the like,” precluded class certification. See Brodsky v. HumanaDental Ins. Co., 910 F.3d 285, 292 (7th Cir. 2018) .

• Informational Messages: In Suriano v. French Riviera Health Spa, Inc., 2018 WL 6702749, *3 (E.D. La. Dec. 20, 2018), the court granted summary judgment to the defendant, holding that the text messages at issue were informational messages, rather than telemarketing messages. The court held that a message that “merely encouraged plaintiff to take advantage of the personal training services for which he already paid” was not telemarketing, nor was “an invitation to visit a social media site.” Id. See also An Phan v. Agoda Co. Pte. Ltd., 2018 WL 6591800, *7 (N.D. Cal. Dec. 13, 2018) (granting summary judgment for defendant where text messages were “sent as part of an ongoing business transaction”).

• “Sender” of Faxes: In Garner Properties & Mgmt., LLC v. Marblecast of Mich., Inc., 2018 WL 6788013, *1 (Dec. 26, 2018), the court granted summary judgment for the defendant after holding that the defendant was not the “sender” of the faxes at issue. The court held that recent case law made it “abundantly clear that the TCPA requires that to hold a party liable as a ‘sender’ of a fax, the party must have physically transmitted the fax or caused the fax to be sent—and [Defendant] did neither.” Id.