For more information, please visit www.lenderlawwatch.com or www.enforcementwatch.com 27 TELEPHONE CONSUMER PROTECTION ACT class action against the gym. The court observed that “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients, so “[a] plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.’” The Court thus held that Spokeo’s requirements had been satisfied without specific allegations of harm to the consumer. The case was ultimately dismissed because the plaintiff had given prior express consent when he provided his phone number to the gym and had not effectively revoked the consent. Van Patten v. Vertical Fitness Group, LLC, No. 14-55980 (9th Cir. Jan. 30, 2017). District Court Denies TCPA Suit on Standing Grounds. In November, the Southern District of California dismissed a case in which the plaintiff’s mortgage servicer allegedly placed automated calls to the plaintiff concerning her default on her mortgage payments. The plaintiff sued under the TCPA, alleging that the calls disrupted her life and prevented her from receiving other calls. The court found these alleged injuries insufficient and held that the plaintiff lacked standing because she had failed to allege a concrete injury. The court distinguished the Van Patten case above because the debt collection calls at issue in this case did not implicate the same consumer interests the TCPA was intended to protect. Selby v. Ocwen Loan Servicing, No. 3:17-cv-00973 (S.D. Cal. Nov. 16, 2017). Putative Class Denied Certification Under Spokeo. The Northern District of Illinois denied class certification in August in a TCPA case in which the plaintiffs had adopted pets from the defendant’s partner animal shelters and then received telephone calls advertising pet insurance from the defendant. The court held that, because some of the named plaintiffs consented to receive communications from the defendants in some form, those plaintiffs would need to show more than a mere technical violation of the TCPA under Spokeo. Thus, the court concluded that class adjudication was inappropriate where class members gave varying levels of consent to receive communications and resolving that consent was too individualized to decide at a class level. Legg v. PTZ Ins. Agency, Ltd., No. 14-C- 10043 (N.D. Ill. Aug. 15, 2017). Illinois Court Finds TCPA Claims Incompatible with Class Litigation. The Northern District of Illinois struck a TCPA plaintiff’s class allegations against a medical services provider and a debt collector. Though the court rejected the defendants’ motion to dismiss the entire case based on lack of standing under Spokeo, the court held that one of the proposed classes (consumers who had originally provided prior express consent to be called but had later revoked such consent) was not viable. The court concluded that the individualized issues associated with determining which consumers had initially provided consent and which had later effectively withdrawn that consent made class treatment unsuitable. Cholly v. Uptain Group, Inc., No. 1:15-cv-05030, Dkt. No. 149 (N.D. Ill. Feb. 1, 2017). D.C. Circuit Holding Limits Authority of Federal Communications Commission. In March, the D.C. Circuit held that the FCC does not have authority under the TCPA to mandate that senders of solicited fax advertisements include opt-out notices in their fax advertisements. The decision overturned an FCC interpretation of 47 U.S.C. § 227(b)(2)(D) requiring the inclusion of opt-out notices in fax advertisements even if they were solicited. Bais Yaakov of Spring Valley v. FCC, No. 14-1234 (D.C. Cir. Mar. 31, 2017). LOOKING AHEAD TO 2018 Industry members following developments in the TCPA field will likely see additional rulings applying Spokeo in various legal and factual contexts. Also, the scope of the TCPA may be altered significantly in 2018, based on the much anticipated D.C. Circuit ruling in ACA Int’l v. FCC, No. 15-211 (D.C. Cir.), in which industry members sued to overturn FCC Order 15-72, an order that dramatically changed the TCPA landscape in 2015. If the court agrees with the plaintiffs, it could unwind many of the broad rules and definitions introduced by the FCC’s July 2015 order. WHAT TO WATCH Continued efforts to correctly apply Spokeo to the TCPA | Forthcoming ruling from the D.C. Circuit in ACA Int’l v. FCC