Third Circuit Reverses Denial of Class Certification, Remands for Development of Record Regarding Ascertainability

The Third Circuit recently vacated a trial court’s decision that members of a putative class were not readily ascertainable by reference to objective criteria. City Select Auto Sales Inc. v. BMW Bank of North America Inc., 867 F.3d 434 (3d Cir. 2017). Although it did not find that a class was in fact ascertainable, it held that the trial court misapplied the ascertainability standard and remanded for further proceedings. Id. at 443. Continue reading   »

Court Compels Arbitration of TCPA Claims Due to Broad Arbitration Agreement with Survival Clause

A recent decision from the Northern District of Ohio highlights the importance of having a carefully drafted arbitration agreement in callers’ customer-facing contracts. See Treinish v. BorrowersFirst, Inc., No. 17-1371, 2017 U.S. Dist. LEXIS 145772 (N.D. Ohio Sept. 8, 2017).

The Plaintiff in Treinish had borrowed money from the Defendant. Id. at *1. Their contract contained two notable provisions: a provision that agreed to resolve disputes in arbitration and a provision that consented to receive automated calls from the Defendant and related entities on her cellphone. Id. at *1-2. Continue reading   »

FCC Issues Public Notice Regarding Requested TCPA Exemptions for Credit Unions

On October 6, 2017, the FCC issued a Public Notice that seeks comment on a Petition that was recently filed by the Credit Union National Association. Specifically, the Public Notice seeks comment on whether it should “adopt an established business relationship exemption from the [TCPA’s] prior-express-consent requirement for informational autodialed or artificial- or prerecorded-voice calls (including text messages) made by or on behalf of credit unions to their members’ wireless phone numbers,” or, alternatively, whether it should “exercise its statutory authority to exempt from the TCPA’s prior-express-consent requirement credit union informational calls made to its members’ wireless phone numbers that are in fact free to the called party.” Continue reading   »

U.S. Senate Votes for More Pai

On Tuesday, October 3, 2017, the Senate confirmed Chairman Ajit Pai to a second term at the FCC, enabling him to potentially stay on as chairman until the end of 2021. Originally appointed by President Obama in 2012, Chairman Pai was a member of the Republican minority on the Commission until early 2017, when former Chairman Tom Wheeler resigned and President Trump elevated Pai to the chairmanship. While Pai’s term technically ended in 2016, FCC rules allowed him to keep serving until the end of 2017 while the Senate considered his re-nomination. Continue reading   »

The TCPA and Its Implications for Credit Unions

TCPA Blog contributor Michael Stortz and TCPA Blog editor Michael Daly will discuss the TCPA at the Regulatory Compliance Seminar of the National Association of Federally-Insured Credit Unions (NAFCU) on October 10, 2017. This discussion will provide an overview of the statute, including recent regulatory developments at the FCC and recent judicial interpretations of the statute’s applicability and requirements. It will also explore the potential risks that credit unions face and best practices for proactively managing them.

For more information about the seminar, please visit the NAFCU website.

Court Reduces Aggregate Award of Statutory Damages Deemed “Obviously Unreasonable and Wholly Disproportionate”

After awarding a judgment as a matter of law at the close of plaintiffs’ case, Judge E. Richard Webber of the Eastern District of Missouri reduced the award because statutory damages of $500 per call would have been “obviously unreasonable and wholly disproportionate to the offense,” making it unconstitutional as applied to the facts of the case. Golan v. Veritas Entm’t, LLC, No. 14-0069, 2017 WL 3923162, at *4 (E.D. Mo. Sept. 7, 2017).
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FCC Seeks Comment on Reassigned Numbers; Dozens of Commenters Answer the Call

On July 13, 2017, the FCC sought comment on how it should address the problem of autodialed or prerecorded calls to “reassigned numbers”—numbers that once were used by an individual from whom the caller obtained consent, but have since been recycled and given to a different individual. Reassigned numbers pose a risk of extensive TCPA liability even for those callers that try hard to do everything right, as there is no perfect system to accurately identify all reassigned numbers at the moment they are reassigned. It is little surprise, then, that dozens of commenters chose to weigh in on the FCC’s proposal to create a database for this purpose.

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Independent Contractor vs. Agent under the TCPA

The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls.

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Eleventh Circuit Holds That Revocation of Consent Can Be Partial, Will Be Factual and Contextual

Last week the Eleventh Circuit held that a consumer can revoke her consent not only orally but also partially. See Schweitzer v. Comenity Bank, No. 16-10498 (11th Cir. Aug. 10, 2017). The rule it announced would be a double-edged sword that makes it more difficult not only for defendants to comply with the TPCA, but also for plaintiffs to satisfy Rule 23.

The plaintiff in Schweitzer provided her cellular telephone number—and, by doing so, her consent to be called at that number—when she applied for a card from the defendant. See Opinion at 3. When she failed to make timely payments on that credit card a year later, the defendant allegedly placed “hundreds” of “automated” calls regarding her debt. The plaintiff answered at least two of those calls. Id. During the first, she said “And, if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.” Id. at 4. During the second, she said “Can you just please stop calling? I’d appreciate that, thank you very much.” Id. The defendant continued calling after the first exchange, but stopped calling after the second. Id. Continue reading   »

District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing

As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading   »