18th Annual Workplace Class Action Report - 2022 Edition

724 Annual Workplace Class Action Litigation Report: 2022 Edition Hufnus, et al. v. Donotpay, Inc., 2021 U.S. Dist. LEXIS 118325 (N.D. Cal. June 24, 2021). Plaintiff filed a class action alleging that Defendant used an automatic telephone dialing system (“autodialer”) to send telephone messages in violation of the Telephone Consumer Protection Act (“TCPA”). Defendant filed a motion to dismiss, which the Court granted. The Court found that Defendant’s conduct did not violate the TCPA because in order to state a claim, Plaintiff must allege that Defendant sent messages via an autodialer and the device must have "the capacity to use a random or sequential number generator to either store or produce phone numbers to be called." Id . at *2. The Court reasoned that the device used to contact Plaintiff processed phone numbers supplied by consumers while signing up for Defendant’s services. The platform only contacted phone numbers specifically provided by consumers during the registration process, and not phone numbers identified in a random or sequential fashion, and therefore did not qualify as an autodialer under the TCPA. Plaintiff contended that the platform used a random number generator to determine the order in which to pick from the pre-produced list of consumer phone numbers, such that it would qualify as an autodialer. Id . at *3. The Court noted that the U.S. Supreme Court had previously held that the TCPA’s definition of autodialer concerned devices that allowed companies "to dial random or sequential blocks of telephone numbers automatically," not systems that randomly or sequentially dialed numbers from a list that was itself created in a non-random, non- sequential way. Id . at *3-4. The Court concluded that Defendant’s platform was similar to other systems that have been determined to not qualify as autodialers because the system targeted only phone numbers that were obtained in a non-random way. For these reasons, the Court granted Defendant’s motion to dismiss. Johansen, et al. v. Bluegreen Vacations Unlimited, 2021 U.S. Dist. LEXIS 151333 (S.D. Fla. July 14, 2021). Plaintiff filed a class action alleging that Defendant, a travel service provider, violated the Telephone Consumer Protection Act ("TCPA") when it initiated telemarketing phone calls to Plaintiff’s residential telephone number, despite the fact that it was registered on the National Do Not Call Registry. Id . at *2. Plaintiff alleged that he suffered harm because the telemarketing calls were frustrating, obnoxious, annoying, and a nuisance. Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim. The Court denied the motion. Defendant contended that Plaintiff failed to establish standing because he did not allege that he suffered an injury-in-fact. The Court disagreed. It opined that Plaintiff sufficiently contended that he suffered harm in that he was temporarily deprived of the legitimate use of his telephone because the phone line was tied up during the telemarketing phone call, Defendant improperly invaded Plaintiff’s privacy, and the telemarketing calls were frustrating, obnoxious, annoying, and a nuisance. Id . at *7. Defendant also argued that Plaintiff failed to state a claim under the TCPA because Plaintiff had an established business relationship with Defendant due to the fact that she had an outstanding credit for a vacation package that Plaintiff had purchased more than 10 years earlier. Id . The Court explained that under the TCPA, the term "established business relationship" only applied if there was a prior or existing relationship with the entity in the 18 months immediately preceding the date of the telephone call. Id . at *8. The Court reasoned that there were no allegations in the complaint that Plaintiff made a purchase or transaction from Defendant within 18 months prior to receiving Defendant’s alleged telephone calls. Finally, Defendant asserted that Plaintiffs’ complaint failed to adequately allege a viable claim for treble damages or injunctive relief. However, the Court found that Plaintiff alleged that even when registered with the National Do Not Call Registry, Defendant initiated telephone calls to Plaintiff’s r esidential telephone number in willful or knowing violation of the TCPA. The Court found these allegations sufficient to allege a claim for treble damages and injunctive relief. For these reasons, the Court denied Defendant’s motion to dismiss. Johansen, et al. v. LoanDepot.com LLC , 2021 U.S. Dist. LEXIS 19562 (C.D. Cal. Jan. 31, 2021). Plaintiff filed a class action alleging that Defendant violated the Telephone Consumer Protection Act ("TCPA"), by making illegal telemarketing calls to residential numbers listed on the National Do Not Call Registry. Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6), on the ground that the TCPA was unenforceable as it violated the First Amendment at the time the calls were made. The Court denied the motion. Defendant contended the U.S. Supreme Court held in Barr v. American Association of Political Consultants, Inc ., 140 S. Ct. 2335 (2020) (" AAPC "), that "the TCPA, as written, was an unconstitutional, content-based suppression on speech." Id . at *2. Defendant thus asserted that while the Supreme Court severed the unconstitutional 2015 government-debt exception, this was done on a prospective basis and therefore, the entire TCPA was unconstitutional from 2015 (when the government-debt exception was added) to July 6, 2020 (the date of the Supreme Court’s decision in AAPC ). Id . at *5. Therefore, since the alleged robocalls at issue