Save the Date! Drinker Biddle’s TCPA Team to Host TCPA Conference on November 14th

Please join our TCPA Team and distinguished panelists in our Washington, D.C. office on the afternoon of November 14th to discuss the evolving regulatory landscape, best practices for mitigating risk, and strategies for defending suits brought under the TCPA.  The FCC regulations that added fuel to the TCPA fire—and, perhaps not coincidentally, this blog—will soon enjoy their fifth anniversary. And yet class actions and compliance questions continue to mount. Our experienced regulatory and class action counsel will discuss these and other important issues with a number of special guests, including:

  • Peggy Daley, Berkley Research Group
  • Robert DeWitte, Kurtzman Carson Consultants LLC
  • Mary Ellen Kleiman, National Association of Chain Drug Stores
  • William Maxson, Federal Trade Commission
  • Joseph Wender, Senior Policy Advisor, Office of U.S. Sen. Edward J. Markey
  • Hassan Zavareei, Tycko & Zavareei LLP

CLE credits will be available and a cocktail reception will be held after the conference. If you would like to attend, please contact us at TCPAteam@dbr.com.

 

Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take

As discussed here on the Blog, the Ninth Circuit ruled last Friday in Marks v. Crunch San Diego, LLC that equipment need not have the capacity to dial numbers randomly or sequentially to be an ATDS under the TCPA. Rather, according to the Ninth Circuit, it is sufficient for equipment to have the capacity “to store numbers to be called . . . and to dial such numbers automatically (even if the system must be turned on or triggered by a person)” to be an ATDS.

Law360 also published an article addressing the impact of the decision entitled “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take,” and TCPA Blog contributor Justin Kay was quoted in the article. Continue reading   »

Trial Courts Split On Whether Consumers Can Unilaterally Revoke Contractual Consent

As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere. Continue reading   »

Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action

The Northern District of Illinois recently granted a motion to decertify a class of TCPA plaintiffs in light of the U.S. Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), which held that the equitable tolling doctrine does not apply to successive class actions. See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL 3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed that plaintiffs can no longer “wait out” a statute of limitations and then “piggy back on an earlier, timely filed class action.” Id. at *1. Continue reading   »

District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising

As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required? Continue reading   »

The Rise Of The Professional TCPA Plaintiff

Filing TCPA actions has become a form of sport for certain plaintiffs. In TCPA Blog’s latest Law360 column, our TCPA Team addresses the manufacturing of TCPA claims, which came to a head in a recent case involving an unabashed professional plaintiff who purchased at least 35 cellphones and numbers with the sole purpose of receiving calls to recycled numbers and then filing suit and cashing in. The article notes the growing use (and abuse) of the TCPA by such plaintiffs:
Continue reading   »

Ten Comical Parallel Acronyms, or: Ten TCPAs That Will Not Be Covered by the TCPA Blog

Our digital searches for new decisions under “TCPA or T.C.P.A.” have yielded some interesting (and, truth be told, lots of uninteresting) decisions about what we all know to be the TCPA.  As it happens, though, they have also yielded decisions about a whole host of other “TCPAs,” for example the Trademark Cyberpiracy Prevention Act, the Tennessee Consumer Protection Act, the Texas Citizens’ Participation Act, and the New Jersey Toxic Catastrophe Prevention Act.

None of those TCPAs will be covered here, interesting though they may be.  Nor will the following ten associations, alliances, advocates, or archeologists that also go by the name of “TCPA.”  Unless, that is, they sue or are sued under the TCPA—which, at the rate things are going, is only a matter of time.

10. The Town and Country Planning Association
9. The Trusted Computing Platform Alliance n/k/a the Trusted Computing Group
8. The Texas Competitive Power Advocates
7. The Foundation for Theoretical and Computational Physics and Astrophysics
6. The Texas Crime Prevention Association
5. The Thai Crop Protection Association
4. The Turpanjian Center for Policy Analysis
3. The TI Calculator Programming Alliance
2. The Tennessee Council of Professional Archaeology
1. The Tantawangalo Catchment Protection Association