Tagged: Class Action

In Fischbein v. IQVIA, Inc., a case involving alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(C), a federal district court in the Eastern District of Pennsylvania denied plaintiff Richard E. Fischbein, M.D.’s motion for class certification after he failed to meet his burden on both ascertainability and predominance requirements. Fischbein’s class action suit alleged that the defendant, IQVIA, Inc., a research organization in the health information industry, sent unsolicited fax advertisements to Fischbein and more than 25,000 other healthcare professionals that invited them to share information about their patients and treatment practices in exchange for points that could be redeemed for rewards. IQVIA argued that the proposed class was not ascertainable, because there was no reliable and administratively feasible mechanism to determine whether putative class members received the faxes at issue on traditional, standalone fax machines or through online fax services. Fischbein, however, argued that the TCPA applies to all faxes, no matter how received. The court held that the plain language of the TCPA – which prohibits the use of “‘any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement’” – clearly distinguished between the type of equipment used to send the unsolicited advertisement and the type of equipment that receives...

Last month, the Federal Communications Commission (FCC) issued an Order on Reconsideration, overturning Commission precedent by clarifying that federal, state, and local government contractors are “persons” under the Telephone Consumer Protection Act (TCPA) and therefore must, under 47 U.S.C. § 227(b)(1)(A)-(D), obtain prior written consent to make certain calls using an automatic telephone dialing system or artificial or prerecorded voice; to initiate a call to any residential telephone line using an artificial or prerecorded voice; to use a fax machine or other device to send an unsolicited advertisement; or to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. This ruling is the latest in the Commission’s efforts to protect consumers from unwanted robocalls. The TCPA prohibits certain unsolicited calls made by any “person,” which includes an “individual, partnership, association, joint-stock company, trust, or corporation,” without the prior written consent of the consumer. In 2016, the FCC issued a declaratory ruling stating that the federal government and federal government contractors were not “persons” under the TCPA, and therefore, the limitations on calling enumerated in Section 227(b)(1)(A)-(D) did not apply to them. The FCC reasoned that there is a longstanding presumption that the word “person” does not include the sovereign and that,...