Marijuana litigation: new trends in TCPA claims after Facebook
In April, we wrote about Facebook v. Duguid ruling The Supreme Court’s ruling may resolve a large number of outstanding TCPA cases across the United States, some of which involve cannabis companies. To quickly recap, the Supreme Court has narrowed the definition of “Automatic Telephone Dialing System” (“ATDS”) to only devices that generate random or sequential phone numbers (which are now largely obsolete). Since most TCPA cases are filed against companies that use phone number databases instead of truly randomly generated phone numbers, we have seen lower courts follow suit and dismiss cases that do not define the defense for ATDS correctly.
Well, we also wrote that this may not be the end of the entire TCPA lawsuit, as a new lawsuit against California pharmacies proves this. In the case of Pettibone v. City Compassionate Caregivers (“CCC”), Pettibone filed a class action lawsuit in the Central District of California. Pettibone alleges that CCC sent multiple telemarketing messages to her mobile phone, including an exit statement (“text stop to cancel Subscribe”)). On November 14, 2020, Pettibone did reply to STOP-but CCC continued to send her messages.
Pettibone’s allegations did not focus on whether this was through ATDS, but instead turned to whether the CCC maintains an internal non-call list. As most of us know, the FTC allows registration and enforcement countries to reject calls to the registry, which now has more than 221 million phone numbers. TCPA’s implementing regulations stipulate:
“No individual or entity may[a] Residential telephone subscribers who have registered his or her telephone number in a country where a person who does not wish to receive telephone invitations maintained by the federal government rejects the telephone registry. “
“(D) No person or entity may initiate any telemarketing call to a residential phone user unless the person or entity has established procedures to keep the request not to be answered by or on behalf of that person or entity.
(3) Recording and disclosure of rejection requests. If an individual or entity making a call (or making a call on its behalf) for telemarketing purposes receives a request from a residential phone subscriber not to answer the person or entity’s phone, the individual or entity must record the request and call the subscriber’s Name (if provided), and phone number from the rejected call list when the request was made. Individuals or entities that make calls (or make such calls on their behalf) for telemarketing purposes must satisfy residential users’ requests to deny calls within a reasonable time from the date of making such requests. This period shall not exceed thirty days from the date of such request…
(6) Maintain the rejection list. Individuals or entities making calls for telemarketing purposes must keep records of consumers requesting that they no longer receive telemarketing calls. From the date of the request, the request to deny the call must be satisfied within 5 years. “
Pettibone stated that she has been registered in the registry since January 13, 2009. She further stated that CCC does not have a written policy on maintaining an internal non-call list, and that CCC has not notified and trained its personnel engaged in telemarketing in response to these requirements.
This case is similar to the case we have seen in Massachusetts. When the company failed to maintain a written no-call list policy and provide it to the requesting customer, the court awarded damages for breach of TCPA.Since this new type of claim seems to be popular again and into the cannabis industry, we recommend that you still keep These practices Please remember and consult us for any questions or concerns.