Readers of this blog know that the Telephone Consumer Protection Act ("TCPA") is an oft-discussed topic, with companies continuing to find themselves named as defendants in TCPA lawsuits. Thankfully, two recent decisions highlight an additional avenue of defense for companies facing potential TCPA liability. The question presented in each of these cases was whether certain messages constituted solicitations within the meaning of the TCPA. Both federal courts concluded that the subject messages were not solicitations and, as such, dismissed each of the plaintiff's claims.
Challenged Communications Are Not Solicitations Under the TCPA
In S.A.S.B. Corp., d/b/a Okechobee Discount Drugs v. Johnson & Johnson Health Care Systems Inc., et al., No. 23-cv-21124 (D.N.J. Aug. 27, 2024), Plaintiff, a family-owned pharmacy, alleged that Defendants sent a two-page fax promoting the sale of Xarelto, a prescription medication, as well as a program offering patient support services. Plaintiff alleged that the fax was sent without its consent, and filed a class action lawsuit alleging that Defendants violated the TCPA for sending this solicitation. In response, Defendants moved to dismiss and argued that the fax was not an unsolicited advertisement, but rather, an informational message that was not actionable under the TCPA. Although it was undisputed that the subject fax was unsolicited, the Court granted Defendants' motion to dismiss. In reaching its decision, the Court examined both pages of the fax and held that "[t]he overall thrust of the message portrayed by the fax . . . is not to promote the availability or quality of Xarelto; rather it is directed at patients who have already been prescribed Xarelto or at least have received a recommendation from their doctor to take Xarelto, and it seeks to provide them with resources to help them navigate that prescription or medication." Because the Court found that the fax was an informational rather than a commercial message, it dismissed Plaintiff's TCPA claim with leave to amend.
In Andersen v. Nexa Mortgage, LLC, No. 24-cv-00619 (C.D. Cal. Aug. 12, 2024), Plaintiff alleged that Defendant contacted him four times over a three-day span despite the fact that his cell phone number was registered on the National Do Not Call Registry ("NDNC"). These messages described: (1) the benefits of working for Defendant as a mortgage banker; (2) the loan products Plaintiff would sell; and (3) how Plaintiff would be compensated for those sales. In the Complaint, Plaintiff asserted that the first three communications were text messages, and that the last communication was a voicemail message in which Defendant followed up on the prior text messages. Plaintiff then filed a putative class action lawsuit alleging violation of the TCPA for receipt of these unsolicited communications. Defendant moved to dismiss Plaintiff's claims on the grounds that the communications were not "solicitations" within the meaning of the TCPA because they did not encourage Plaintiff to purchase anything from Defendant. In its decision, the Court looked at prior Ninth Circuit district court cases which held that communications that encourage people to enter into an employment, independent contractor, or other similar relationship were not solicitations within the meaning of the TCPA. Because the Court concluded that the "primary purpose of the communications was to encourage Plaintiff to enter into an independent contractor relationship with Defendant," the Court granted Defendant's motion to dismiss. Unlike in S.A.S.B, the Court dismissed these claims with prejudice and without leave to amend.
Experienced TCPA Attorneys Can Make a World of Difference
The above decisions provide another arrow in the quiver for companies facing TCPA liability. Defendants should hire experienced TCPA attorneys who stay current with constantly-evolving case law and regulatory changes. Hiring the experienced telemarketing attorneys at Klein Moynihan Turco ("KMT") can help companies avoid significant time and costs and can help ensure: (1) telemarketing law compliance; and (2) zealous advocacy in defending TCPA claims.
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