A couple of recent court cases indicate more challenges ahead for telephone researchers who get socked with TCPA class action lawsuits: It isn't as easy as you think to dismiss a frivolous TCPA class action.

The July 10, 2015 Federal Communications Commission (“FCC”) Declaratory Ruling and Order expanded the ability of plaintiffs to bring suit for violations of the Telephone Consumer Protection Act (TCPA), which makes it unlawful to make a call using an “automatic telephone dialing system” (autodialer) or an artificial or prerecorded voice to a cell phone. See 47 U.S.C. § 227(b)(1)(A)(iii).

Two recent Federal, District Court cases, Martin v. Direct Wines (Northern District of Illinois, No. 15 C 757) and Isgett v. Northstar Location Services, LLC (District of South Carolina, 4:14-cv-4810-RBH), while not directly involving market research, shed further light on the technical elements trial courts will require of TCPA plaintiffs when drafting their complaints.

In Martin, the plaintiff alleged that the defendants used an autodialer for the purpose of trying to sell wine. Although the complaint in that case alleged the defendants made the calls “using Five9 or similar dialer technology,” the plaintiffs claimed discovery that would take place later in the case (through depositions, etc.) would “show precisely what dialer technology was used, and how.” Citing a previous line of cases which said that a “formulaic recitation” of the elements of a TCPA claim — merely stating that a defendant used an autodialer, for example — is insufficient to state a claim, the court concluded that the plaintiff needed independent facts to support his belief that the wine seller had used an autodialer, and dismissed the claim.

Even though the Court dismissed the Complaint, the Court allowed the Plaintiff to amend the Complaint to cure these technical deficiencies.

In Isgett, the plaintiff’s complaint alleged that “[a] number of calls placed to the Plaintiff’s cellular telephone by Defendant were made through the use of an automatic telephone dialing system,” as defined by the TCPA. However, unlike in Martin, the plaintiff was for more specific about the particulars of the allegations that an autoialer was being used. Specifically, Isgett alleged that the defendant “made several phone calls within a twenty-four hour period, used six different telephone numbers, placed calls from [a] telephone number... using an automated dialer, and made calls to collect an alleged debt.” The district court denied the defendant’s motion to dismiss, on the grounds that the plaintiff had pled sufficient facts that would support a reasonable inference that the defendant used an autodialer.

These cases reaffirm the federal pleading requirements that plaintiffs must do more than simply recite the elements of a TCPA claim by making a general allegation that a defendant used an autodialer. That said, the Isgett case suggests that the additional facts necessary to survive a motion to dismiss need not be plentiful or very specific.

The upshot of these two cases is that some basic references around the alleged use of an autodialer is sufficient for plaintiffs to survive a motion to dismiss and to be able to proceed with their action under the FCC's new, expansive TCPA interpretation.

This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with your attorney on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.