The fallout from the (in my opinion) multi-year scam of ringtoneless voicemail providers telling consumers that their technology was not subject to the TCPA continues.
Many of you may remember ringless voicemail providers argue/advertise/promise? that their technology was not subject to the TCPA because voicemail *cough* is an information service, not a telecommunications service. This argument made no sense because: i) they did not operate a voice mail service, they leaving voice messages – two different things; and ii) even information services may be subject to the TCPA; see SMS. Nonetheless, I’ve seen at least one attorney white paper explaining how the TCPA doesn’t apply to this technology, which makes me wonder how some people sleep at night.
(Related, I saw another whitepaper recently that strongly implied that using an autodialer is good after Facebook Until random phone numbers are dialed, this guy should have his bar license revoked.)
Either way, a ton of companies were swept up in the ringless voicemail craze over the 2016-2019 period, most of whom believed – mistakenly – that the technology was somehow out of date. the TCPA test. This position has melted away. Totally. See here, here, here and here.
But the fallout continues.
This week, for example, a class action CERTIFIED by a Connecticut court involving the most squeaky-named platform in all of TCPAWorld: “Slybroadcast,” a popular ringtoneless voicemail platform.
Pro Tip: Go ahead and avoid using anything that calls itself “sneaky” from now on. It’s not.
In any event, the court of Lenorowitz v. Mosquito Squas of Fairfield and Westchester, (how about that name), 2022 WL 4367596 (D. Conn. Sept. 21, 2022), just certified a class action lawsuit in favor of a plaintiff and against a pest control company that used Slybroadcast to contact more than nine thousand customers.
The post was about tick control – I know there’s a TCPA joke but I can’t find it:
Hi, this is Maria with Mosquito Squad. We emailed you last week with details of our two additional tick control options, and wanted to see if you had any questions. While tick tubes and attic treatments can be added to your current backpack service, tick tubes kill the nymph stage tick underground and granular products increase the kill rate of adult ticks underground. above ground. Please call me back if you would like to discuss how we can go above and beyond to control ticks on your property. My number is 877-337-4415. Thank you and have a nice day.
In certifying the group, the Court rejected a recent trend suggesting that receiving a single RVM does not give rise to Article III – and it is a real headache for those of us who have worked so hard to extend the permanent limits of Article III on TCPA cases.
The Court also allowed plaintiff to change its class definition to exclude certain categories of phone calls that would otherwise not be actionable and I HATE that. Plaintiffs often try to sandbag defendants with GARBAGE class definitions in their papers that can never be certified. Then they turn around in a brief REPLY and try to change their definition – sometimes after discovery is closed!!! And the courts let them off the hook. This is absolutely terrible and demonstrates that the justice system has truly forgotten what due process means in the context of civil litigation. But I digress.
Adding to the fun, the Court found that the plaintiff was adequate to represent the class – and a guy named Zelman was adequate to represent him – even though:
The plaintiff and his attorney are neighbors, attend the same synagogue, their children have attended school together, and on a few occasions the plaintiff’s daughter has provided babysitting services for Mr. Zelman’s children.
Finally, the Court overcame the hurdles to verifiability by allowing the plaintiff to use a self-identification affidavit to identify class members:
“Was your phone number ________ a home landline number or a cell phone number in April and May 2019? Yes No____.”
In any event, this case was clearly a shipwreck for the Defence. But that’s what happens when a caller uses TCPA-regulated technology without any effort to obtain consent.
So a few things to note here:
1. RVM still covered by TCPA. Nothing has changed there.
2. RVM’s standing arguments may not prevail everywhere.
3. MOVE TO STRIKE classes that are not certifiable. Remind the courts that these moron plaintiffs lawyers will try to change their definitions later in the game and that is NOT FAIR and is not allowed. They MUST be required to indicate their actual class at the pleadings stage.
4. Even a guy like Zelman can get a case certified when calls are made without consent.
5. Self-identification affidavits are still valid.
6. Slybroadcast is not sneaky IMO.
7. Pest control companies may or may not be in the TCPA’s crosshairs now.