Revocation of Consent Must Be Reasonable and Recollected

Two recent decisions rebuffed TCPA claims arising from calls or text messages that were received after the called parties had allegedly revoked their consent. The decisions reinforce that plaintiffs who intend to pursue such claims must: (1) revoke their consent in a reasonable rather than contrived manner; and (2) support their claims with specific facts rather than conclusory allegations. Continue reading

Allegedly Deficient Opt-Out Language in Fax Did Not Give Rise to a Concrete Injury Under Spokeo

We’ve previously reported on the D.C. Circuit’s March 31 decision, which held that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. FCC, No. 14-1234, Slip. Op. at 4 (D.C. Cir. 2017). And as we recently discussed, the plaintiff intervenors in that case have sought a rehearing en banc. Given the significance of the D.C. Circuit’s decision in TCPA class actions, it would not be a surprise if the en banc petition is just the beginning of the plaintiffs’ bar’s efforts to attack the D.C. Circuit’s decision. While the D.C. Circuit’s ruling is welcome news to defendants in TCPA actions, the Eastern District of Missouri recently dealt another blow to the plaintiffs’ bar. In that regard, shortly before the D.C. Circuit’s ruling, a district court held that an allegedly deficient opt-out notice in a fax the plaintiff invited did not give rise to a concrete injury under Spokeo, and dismissed the case for lack of Article III standing. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 4:15-CV-517 RLW, 2017 U,S., Dist, LEXIS 39411 (E.D. Mo. Mar. 20, 2017). Continue reading

FCC Commissioner O’Rielly Addresses ACA International – TCPA Changes Afoot

May 4, 2017 was Star Wars Day (“May the Fourth . . .”), but it also marked the date of FCC Commissioner Michael O’Rielly’s speech to the ACA International Washington Insights Conference. Commissioner O’Rielly opened with a joke about the number of times ACA had to call him before he had the opportunity to accept its speaking invitation, and then moved on to discuss a number of ways in which he feels the TCPA has been expanded beyond the intended scope of the statute. O’Rielly cited ACA research showing that between 2010 and 2015 there was a 948 percent increase in litigants involved in TCPA-related lawsuits, but noted that “despite this, there is reason for optimism” with the change in FCC leadership. Continue reading

Plaintiff Intervenor Petitioners Challenge Majority Opinion in Bais Yaakov, Fail to Address Standing to Do So

As we’ve previously reported, on March 31, the DC Circuit issued a 2-1 opinion in the Bais Yaakov appeal holding that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. Given the profound impact we expect that ruling to have in TCPA fax litigation, it is no surprise that the plaintiffs’ bar is fighting that decision: on April 28, 2017, the plaintiff intervenors in the Bais Yaakov appeal filed a petition for rehearing en banc before the full D.C. Circuit. Continue reading