Courts Continue to Grapple with Article III Jurisdictional Questions in the Wake of Campbell-Ewald v. Gomez

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Article III of the U.S. Constitution limits the jurisdiction of federal courts to “cases” and “controversies.” U.S. Const., Art. III, § 2. Accordingly, as the Supreme Court recently clarified, “[i]f an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). In the long-awaited decision, the Campbell-Ewald majority held that an unaccepted offer of complete relief under Rule 68, alone, does not moot a claim and thus does not deprive a court of Article III jurisdiction over the action. However, in so ruling, the majority emphasized that the fact that the offer was unaccepted was critical to its decision, thus leaving unanswered a host of scenarios in which a defendant makes an actual full payment or an unconditional tender to the plaintiff, and the court enters judgment for the plaintiff in that amount. Continue reading

Oral Argument Scheduled In The Consolidated Appeal From The FCC’s October 2014 Anda Order

After recently scheduling oral argument in the consolidated appeal from the July 2015 Declaratory Ruling and Order, the United States Court of Appeals for the D.C. Circuit has scheduled oral argument in the consolidated appeal from the Federal Communication Commission’s (“FCC”) October 2014 Final Order (the “Anda Order”) for Tuesday, November 8, 2016.  As we previously reported, in the Anda Order the FCC found that it had the statutory authority to  promulgate a rule requiring  that the opt-out notice Congress specified in the Junk Fax Prevention Act (“JFPA”) must be present on faxes for the sender to take advantage of the Established Business Relationship (“EBR”) exemption must also appear on solicited faxes. The FCC also decided that, because of reasonable confusion surrounding the rule, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without an opt-out notice. Following the release of the Anda Order, both class action plaintiffs (“Plaintiff Petitioners”) and class action defendants (“Defendant Petitioners”) filed cross-appeals, which were consolidated and centralized in the D.C. Circuit as Bais Yaakov of Spring Valley, et al. v. FCC, No. 14-1234. Continue reading

Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases

On May 9, 2016, the Sixth Circuit reversed a decision of the Northern District of Ohio granting summary judgment to Defendant in a TCPA fax case. Siding & Insulation Co. v. Alco Vending, Inc., No. 15-3551. The district court had accepted Defendant’s argument that it could not be liable under the TCPA for sending the allegedly offending faxes because while it did retain an ad agency (B2B/Caroline Abraham, a combination known well to practitioners in this space) to transmit faxes advertising its services to consenting businesses, it had never authorized transmission of faxes to non-consenting businesses, including the Plaintiff. Finding that under federal common-law agency principles Defendant could not be held vicariously liable for sending the faxes because it neither authorized the transmission of the offending faxes, nor ratified the ad agency’s conduct, the district court entered summary judgment in favor of Defendant. Continue reading

Tippecanoe and the TCPA, Too, Two

Following up on our March 9 reminder, and just in time for Super Tuesday II, the Federal Communications Commission’s Enforcement Bureau issued an Enforcement Advisory on March 14 titled, “Biennial Reminder for Political Campaigns about Robocall and Text Abuse.” The advisory (similar to past advisories) is a reminder to “political campaigns and calling services that there are clear limits on the use of autodialed calls or texts (known as ‘robocalls’) and prerecorded voice calls.” The advisory summarizes the TCPA’s regulations on (1) calls to cell phones, (2) calls to landlines, (3) identification requirements for prerecorded voice messages, and (4) “line seizure” restrictions. The advisory also includes an “At a Glance” summary of regulations as applied to Political Calls and a series of Frequently Asked Questions with contact information for the Enforcement Bureau for those who have unanswered questions or lingering concerns. Continue reading

Tippecanoe and the TCPA Too

With election season under way, it bears repeating that candidates for office are not immune from the restrictions imposed by the TCPA. As the FCC’s Enforcement Bureau explained in an advisory that we discussed previously here, while “[p]olitical prerecorded voice messages or autodialed calls—whether live or prerecorded—to most landline telephones are not prohibited, so long as they adhere to the identification requirements” mandated for all prerecorded messages, the “broad prohibition” on calls to cell phones and other specific types of phone numbers (e.g., health care/emergency lines) “covers prerecorded voice and autodialed political calls, including those sent by nonprofit/political organizations.” Candidates (or their supporters) who are not aware of the TCPA (or confused about the difference between the restrictions on informational calls to cellular phones versus such calls to residential landlines and not aware of the difficulties in managing recycled number issues) risk finding their campaign embroiled in litigation, as evidenced by a new TCPA filing last week. Continue reading

Briefing continues in cross appeals of Anda Order

In its October 2014 Final Order (the “Anda Order”), the Federal Communications Commission found that it had the statutory authority to regulate solicited faxes by promulgating a rule that requires an opt-out notice on all such faxes, but also found that because of reasonable confusion surrounding the regulation, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without the opt-out notice. Continue reading

Who Bears Liability For That Call Or Fax? Courts Continue To Wrestle With Direct And Vicarious Liability

Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?

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