Last month, in Lawson v. Nations Health Grp., Inc. ("Defendant"), a magistrate judge for the United States District Court for the Southern District of Florida issued a useful decision for Telephone Consumer Protection Act ("TCPA") defendants. In the Lawson proceeding, Plaintiff sued Defendant for allegedly calling him, at least four times, without consent. In his TCPA lawsuit, Plaintiff alleged that these telemarketing calls violated the National Do-Not-Call ("NDNC") Registry provisions of the TCPA. After evaluating Defendant's Motion to Dismiss, the magistrate judge determined that Plaintiff failed to state a claim and recommended dismissal of Plaintiff's TCPA lawsuit.
As our readers are aware, the TCPA is a federal statute that restricts certain types of telemarketing communications. Every day, numerous complaints alleging violation of the TCPA and its state analogs are filed. The Lawson decision is notable because it highlights the importance of scrutinizing claims early in TCPA lawsuit proceedings.
The Alleged Facts in the Lawson TCPA Lawsuit
Defendant is a Florida-based company that offers healthcare services. In his TCPA lawsuit, Plaintiff states that, on at least four occasions, he received telemarketing calls promoting Defendant's health insurance services. Plaintiff alleged that he was listed on the NDNC Registry for roughly 14 and a half years prior to the calls at issue. As our readers are aware, these allegations are contained in many TCPA complaints and are standard recitations of the actionable portions of the statutory language.
It is important to note that NDNC registry protections are only afforded to non-business phone numbers. Following the filing of Plaintiff's Second Amended Complaint, Defendant filed a Motion to Dismiss. In its Motion, Defendant argued that Plaintiff had not adequately stated a claim. Specifically, Plaintiff had not adequately plead that his telephone number was residential or that it was listed on the NDNC.
How Was Lawson Decided?
- cWhen deciding NDNC lawsuits, the Eleventh Circuit has often relied on the TCPA's presumption that "wireless subscribers who ask to be put on the national do-not-call list [are] residential subscribers." However, plaintiffs must still plead facts sufficient to reach this presumption. The magistrate judge determined that Plaintiff did not include any additional facts to substantiate that his cellular phone was used for residential purposes, instead relying on the TCPA's presumption alone.
- In arriving at his decision, the magistrate judge considered a 2003 FCC Opinion and Order, which made clear that wireless telephone numbers could be placed the NDNC registry. In this Order, the FCC explicitly stated that residential subscribers do not register their names with the NDNC Registry, they register their telephone numbers. Because Plaintiff alleged that he was listed on the NDNC registry, but did not allege that his telephone number was, he did not adequately state a claim pursuant to the TCPA's NDNC provisions.
To survive a motion to dismiss, a complaint must "provide enough factual information to state a claim to relief that is plausible on its face." A claim is facially plausible when the plaintiff pleads facts that allow a court to infer that a defendant is liable for the allegedly violative conduct. TCPA lawsuits are often a mix of recitations of the statute's actionable provisions and basic facts that barely meet this standard. In Lawson, Plaintiff's reliance on this manner of pleading could end up proving fatal to his lawsuit.
Hire Experienced Attorneys to Carefully Examine TCPA Complaints
Numerous TCPA complaints are filed every day. Rulings, such as Lawson, serve as a reminder that the adequacy of pleadings should not be overlooked by defendants. Operative complaints need to be carefully examined to ensure that they are not mere statutory recitations.
Similar Blog Posts:
New TCPA Arbitration Decision Provides Roadmap To Enforcement
Did This Fresh Subway TCPA Litigation Decision Refresh A New Type Of Claim?
Ringless Voicemails Require TCPA Consent
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
