Briefing In The Consolidated Appeal From The July 10, 2015 Declaratory Ruling and Order Is Complete

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On Wednesday the Joint Petitioners and the FCC filed their final briefs in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order, which is pending in the United States Court of Appeals for the D.C. Circuit. Their briefs are summarized below.

The Joint Petitioners’ Final Brief

The Joint Petitioners’ final brief reiterates their primary challenges to the FCC’s rulings regarding the definition of an ATDS, the identity of the “called party” from which consent must be obtained, and the extent of that party’s ability to revoke that consent. Continue reading

Common Sense Rulings on the Meaning of “Prior Express Consent”

On August 20, 2015, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Murphy v. DCI Biologicals Orlando, LLC, No. 14-10414, 2015 U.S. App. LEXIS 14632 (11th Cir. Aug. 20, 2015), affirming an order granting the defendants’ motion to dismiss, and on August 21, 2015, the United States Court of Appeals for the Sixth Circuit rejected a challenge to a jury verdict in favor of the defendant, Hill v. Homeward Residential, Inc., No. 14-4168, 2015 U.S. App. LEXIS 14703 (6th Cir. Aug. 21, 2015). In both cases the definition of “prior express consent” was at issue, and in both cases the plaintiff’s attempt to shrink the definition was rejected.

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Web Messaging Platforms After The FCC’s Declaratory Ruling

While various petitioners are challenging the FCC’s July 10, 2015 Declaratory Ruling before the D.C. Circuit, a recent district court decision is one of the first to address its impact on a pending TCPA claim. See Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 U.S. Dist. LEXIS 109841 (N.D. Cal. Aug. 19, 2015). The decision confirms that even after the Declaratory Ruling, if the platform requires human intervention to send text messages, it will not be deemed an automated telephone dialing system (“ATDS”).

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Centralization – When Is It an Option?

On Friday August 7, 2015, the Judicial Panel on Multidistrict Litigation (the “Panel”) issued four decisions in pending TCPA cases:  In re Holiday Cruise Line Tel. Consumer Prot. Act (TCPA) Litig., MDL No. 2637, 2015 U.S. Dist. LEXIS 103628 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re: Local Lighthouse Corp. Tel Consumer Prot. Act (TCPA) Litig., MDL No. 2644, 2015 US. Dist. LEXIS 103637 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization); In re Portfolio Recovery Assoc., LLC, Tel. Consumer Prot. Act (TCPA) Litig., MDL 2295, 2015 U.S. Dist. LEXIS 103929 (J.P.M.L. Aug. 7, 2015) (granting motion to transfer for inclusion in coordinated or consolidated proceedings) and; In re Sirius XM Radio, Inc. Tel Consumer Prot. Act. (TCPA) Litig., MDL No. 2635, 2015 U.S. Dist. LEXIS 103629 (J.P.M.L. Aug. 7, 2015) (denying motion for centralization).  The four cases have relatively little in common aside from the fact that each involved a claim under the TCPA: In re Portfolio Recovery Assocs. involved alleged debt collection calls over VOIP lines, In re Sirius involved marketing calls that occurred after a free subscription to Sirius XM radio expired, In re Holiday Cruise Line involved unsolicited text messages, and In re Local Lighthouse Corp. involved marketing calls to both cellular and landline numbers. Despite the factual differences between the cases, there are two broad lessons from this group of decisions.

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Take Care When Crafting an Offer of Judgment

In Compressor Eng’g Corp. v. Thomas, Case No. 10-10059, 2015 U.S. Dist. LEXIS 20079 (E.D. Mich. Feb. 19, 2015), Defendant Charles Thomas Jr. sought to moot the claim of Plaintiff Compressor Engineering Corporation (“Compressor”) by making an offer of judgment for $1,500, the maximum statutory award for a single violation of the TCPA.

Compressor filed suit after receiving an allegedly unsolicited fax and sought to certify a class of “[a]ll persons that are holders of telephone numbers to which a facsimile transmission was sent on behalf of Defendant advertising the goods or services of Defendant at any time from August 13, 2005 to present….” Id. at 4. In addition to seeking monetary damages, Compressor also sought injunctive relief.

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Fail-Safe Class Fails in the Eastern District of Pennsylvania

In Zarichny v. Complete Payment Recovery Servs., Civ. No. 14-3197, 2015 U.S. Dist. LEXIS 6556 (Jan. 21, 2015), Plaintiff Sandra Zarichny attempted to bring a class action on behalf of two classes against defendants Fidelity National Information Services (“FIS”) and Complete Payment Recovery Services (“CPRS”). Id. at *1-2. Zarichny alleges that the defendants called her eleven times because they incorrectly believed that she owed a debt based on her alleged failure to return textbooks that she rented. Id. at 7-8. In her complaint, Zarichny alleged that the Defendants deliberately harassed her by calling at inconvenient times. Id. at 9. Zarichny alleged that both corporations violated the TCPA and the Fair Debt Collections Practices Act (the “FDCPA”).

Fidelity and CPRS brought a motion to dismiss Zarichny’s complaint and a motion to strike her class allegations, which the court granted in part and denied in part.

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You Still Can’t Violate the FDCPA by Complying With It…

In Gomez v. Oxford Law, 3:14-cv-00477, 2015 U.S. Dist. LEXIS 345, * 3 (M.D. Pa. Jan. 5, 2014), Ninouska Gomez filed suit under the Fair Debt Collection Practices Act (the “FDCPA”) after receiving a message from Oxford Law, which used an autodialer to leave the message. In their statement of undisputed facts, Gomez and Oxford Law agree that Gomez heard the following message: “… please hang up or disconnect. If you are Gomez, Vinouish please continue to listen to this message. There will now be a three second pause in this message.” The message was designed to comply with 15 U.S.C. § 1692c(b), the portion of the FDCPA that prohibits debt collectors from revealing information about a debtor to third parties.

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Capital One Agrees to $75 Million TCPA Settlement

Capital One and three collections agencies recently announced the largest proposed cash settlement in TCPA history – $75.5 million. This is more than double the amount of the prior record – a $32 million settlement from Bank of America.

The plaintiffs allege that Capital One and the other defendants used an ATDS to place debt collection calls to 21 million cell phone numbers without the requisite consent. Under the terms of the proposed settlement, Capital One will contribute $73 million to the settlement fund, while AllianceOne Receivables Management Inc., Leading Edge Recovery Solutions, LLC and Capital Management Services, L.P. will contribute $1.4 million, $996,205 and $24,220, respectively. The settlement agreement estimates that claimants will receive at least $20-$40 and allocates up to 30% of the settlement fund for an award of attorneys’ fees and costs in an amount to be set by the court. The settlement fund is non-reversionary. Capital One also agreed to take steps to ensure TCPA compliance going forward though it expressly disclaimed any liability in connection with the settlement.

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