Nasty Political Campaign Results In Potential Liability For VoIP Providers But Not Voice Actors

As we approach the November 2018 midterm elections, we expect that we will once again see (i) an uptick in the volume of political calls; (ii) a reminder from the FCC that the TCPA applies to those calls (emphasizing that such calls are prohibited if made to cell phones without the consent of the called party, and that all prerecorded calls to cell phones or landlines must comply with certain identification and line release requirements); and (iii) a handful of new lawsuits filed against campaigns, candidates, and committees that allegedly failed to heed the FCC’s warning—all topics we have covered here before. Two recent decisions from a federal court in West Virginia pertaining to the 2016 election serve as a reminder that these lawsuits can linger long after the election ends Continue reading   »

Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability

We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice. Defendant had moved to dismiss the case for lack of Article III standing after removing the case from state court and the district court dismissed the claim because the alleged injuries were not traceable to the purported TCPA violation. Continue reading   »

Testimonial Evidence Sufficient to Defeat Class Certification: Court Denies Class Cert on Basis of Defendant’s Testimony Regarding Its Compliant Practices

The Southern District of Ohio recently denied class certification because the defendant’s unrebutted testimony—which established that its procedures ensured that faxes were only sent to those who had given their prior express permission—created individualized issues that predominated over any common ones. See Sawyer v. KRS Biotechnology, 2018 U.S. Dist. LEXIS 8595 (S.D. Oh. May 30, 2018).        Continue reading   »

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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Second Circuit Affirms Denial of Certification Because Putative Class is Unascertainable, but Holds Receipt of Phone Calls Confers Standing

Last week, the Second Circuit, in Leyse v. Lifetime Entertainment Servs., LLC, affirmed the denial of class certification in a putative TCPA prerecorded message class action for lack of an ascertainable class. (We previously blogged about this district court decision.) Lifetime, concerned that viewership of its hit show “Project Runway” would suffer due to a channel change, hired a third-party vendor, OnCall Interactive, to contact New York City residents with a prerecorded message from the show’s host informing potential viewers of the channel change. Leyse v. Lifetime Entertainment Servs., LLC, No. 13-cv-5794, 2015 WL 5837897, at *1 (S.D.N.Y. Sept. 22, 2015). OnCall, in turn, purchased a list of phone numbers from an unknown third-party vendor; Lifetime never obtained that list. Id. at *2. Continue reading   »

Second Circuit Moots Class Claims Based on Offer of Judgment

The Second Circuit last week confirmed that entries of judgment satisfying an individual plaintiff’s claims moot TCPA class actions.

In Bank v. Alliance Health Networks, LLC, No. 15-cv-4037 (2d Cir. Oct. 20, 2016), the Second Circuit affirmed the dismissal of the class claims after an entry of judgment, pursuant to the defendants’ offer of judgment, rendered the class claims moot. The Second Circuit acknowledged that the Supreme Court held in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that an unaccepted offer of judgment does not moot a plaintiff’s claims. “But where judgment has been entered and where the plaintiff’s claims have been satisfied, as they were here when [the plaintiff] negotiated the check, any individual claims are rendered moot.”  Continue reading   »

Death And Taxes Are Certain; TCPA Claims Are Not

In Hannabury v. Hilton Grand Vacation Co., LLC, No. 14-cv-6126, 2016 WL 1181789 (W.D.N.Y. Mar. 25, 2016), the District Court for the Western District of New York held that a named plaintiff’s TCPA claims do not survive his death.

Plaintiff had filed a putative class action against Hilton for placing calls to his cell phone in an attempt to sell interests in timeshare properties, even though he alleged that his phone number was listed on the national Do Not Call Registry. The named plaintiff, however, passed away before moving to certify a class. His estate brought a motion to substitute itself as the named plaintiff. Continue reading   »

Ninth Circuit Confirms That Providing A Business With Phone Number Constitutes Express Consent To Be Called Under The TCPA

In a recent decision, the Ninth Circuit held that the named plaintiff in a putative TCPA class action expressly consented to receive a text message when she provided an airline with her phone number, even though she claimed she only provided her number because she thought it was required to purchase airline tickets and had no intention of consenting to be contacted. Baird v. Sabre, Inc., No. 14-55293, 2016 WL 424778, at *1 (9th Cir. Feb. 3, 2016).

When Shaya Baird booked flights online, she was prompted to provide contact information and was informed that “‘[a]t least one phone number is required.’” Baird v. Sabre, Inc., 995 F. Supp. 2d 1100, 1101 (C.D. Cal. 2014). Three weeks later, Sabre, which was contracted by Hawaiian Airlines to provide traveler notification services, sent Baird a text message asking if she wanted to receive flight notifications. Baird did not respond and Sabre sent no other messages. Baird subsequently filed a putative class action. Continue reading   »