As I continue working through the 2019 TCPA Year-End Review—patience, friends—it dawns on me just how extraordinary a year 2019 was for TCPA litigation in the Eleventh Circuit Court of Appeal footprint.
At the beginning of 2019, there seemed to be no safer jurisdiction to pursue a TCPA suit. The Bad Reyes decision had firmly established the use predictive dialers tripped statutory coverage, relying on the old FCC rulings from 2003 and 2008—which the Eleventh Circuit’s Mais decision clarified were untouchable under the Hobbs Act.
The Eleventh Circuit’s Osorio decision appeared to confirm both that a caller needed the consent of the “current subscriber” to make phone calls–an impossible task in an era of mass-number recycling– and (at least arguably) that contractual consent was always revocable.
Schweitzer appeared to double-down on Osorio and even made partial revocation a thing to worry about down South.
Plus, the Eleventh Circuit’s Church decision (an FDCPA case) suggested that any ole statutory violation gave rise to Article III standing post-Spokeo, and the residual impact of pre-Spokeo decisions—most notably Palm Beach Golf Center–seemed to assure that TCPA plaintiffs had ready and certain standing to bring claims for calls to their cell phones.
And the Eleventh Circuit’s Gamble decision came pretty close to suggesting that TCPA suits were not even subject to arbitration. Eesh.
Yep, coming into 2019, the Eleventh Circuit Court of Appeal was the absolute most pro-consumer, anti-caller circuit in the country–and there wasn’t really even a second place.
Unsurprisingly, consumer lawyers in Florida began betting big on TCPA suits—investing in websites and designer phone numbers advertising recoveries of $500-$1500 per call—and it looked like boom times ahead. Hundreds upon hundreds of TCPA suits, mostly large-dollar class actions, were filed in the Eleventh Circuit’s footprint as consumer lawyers rushed to take advantage of this favorable case law.
Multi-million dollar TCPA class action settlements piled up like so much driftwood.
Boy, what a difference a year can make.
The first hint that something odd was happening came in July, 2019. Then, in a decision that was ostensibly about the fitful death of the FCC’s solicited fax rule—the Eleventh Circuit jumped headlong into the battle between the various branches of government launched in PDR Resources. And in a surprise (but still dicta) twist, the Eleventh Circuit panel in Gorss Motels determined that the Hobbs Act did not actually prevent district courts from reviewing FCC TCPA rulings–a direct contradiction to the Eleventh Circuit’s earlier Mais opinion. Powerfully unexpected.
While the Gorss Motels ruling was offbeat and unexpected, it was nothing compared to what happened next. In August 2019 the first really big hit came completely out of left field. The same Circuit Court of Appeal that had repeatedly handed down decisions enunciating broad standing principles suddenly declared that receipt of an unwanted text message did not necessarily cause Article III standing. Instead–the Court ruled in Hanna v Salcedo—a Plaintiff must demonstrate that the unwanted text actually harmed him or her in some way. It was a stunning ruling, and one that departed completely from the Ninth Circuit’s Van Patten decision and the remnants of virtually all of the Eleventh Circuit’s pre-Spokeo TCPA standing cases. Indeed, Hanna specifically narrowed Palm Beach Golf Center so as to make the decision inapposite in non-fax cases moving forward.
The even bigger news came in November, however, when the Eleventh Circuit handed down Cordoba. There the Court confirmed that uninjured class members cannot recover at trial and, therefore, a Court must take into account Article III standing issues at the certification stage in assessing predominance. Translation: unless all class members definitively suffered an injury, class certification is not possible owing to individualized issues of who suffered harm and who didn’t. And, as Hanna established, TCPA cases do not necessarily cause harm. My prediction from 2016 had come true: TCPA class actions were no longer certifiable as a result of Spokeo. (Yes, I wrote that article, never mind that another firm has their name on it. It happens.)
In the meantime, the Florida district courts launched their own TCPA revolution. Some held that contractual TCPA consent was irrevocable, no matter what Osorio said. Others refused to apply the TCPA outside of random or sequential calls, or where “human intervention” was used to send text messages. Heck, even Bad Reyes ended up stayed on the verge of trial.
But the biggest hit of all came this year when the Eleventh Circuit Court of Appeal handed down Glasser. In that decision, the Court concluded that the TCPA only applies to dialers that call using random or sequential number generators. Glasser departed completely from the Ninth Circuit’s formulation in Marks and explained—in a lengthy and well-analyzed opinion—why the TCPA’s dialer restrictions simply do not apply outside of the marketing context.
In a single year, the Eleventh Circuit has gone from the absolute best place on Earth to pursue a TCPA class action to the absolute worst. And you can almost hear the rumble—the great sucking sound—of TCPA class lawyers flocking from one coast to the other. The Ninth Circuit, with Marks and Van Patten providing cover, is now the center of the TCPA litigation universe. At least for now.
Who knows what 2020 will hold. In the meantime though, I know a pretty good California-based TCPA class action defense team if you need one. 😉
Stay safe, TCPAWorld.
By Eric Troutman