Independent Contractor vs. Agent under the TCPA

The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls.

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District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing

As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading   »

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   »

Ninth Circuit Rules on Standing, Revocation of Consent

In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages. Continue reading   »

The Sun is Setting on the Caribbean Cruise Line TCPA Class Action

A much-anticipated TCPA class action trial was set to begin next week in Birchmeier et al. v. Caribbean Cruise Line Inc., et al., in the United States District Court for the Northern District of Illinois. According to published reports, however, a class-wide settlement was reached yesterday in this protracted litigation with a history of controversial rulings by the District Court.

Under the terms of the agreement, defendants will pay in the range of $56-$76 million, to settle the claims of class including approximately one million people who received robocalls from defendants in 2011-2012. Class members will reportedly receive $500 for each call received, with the total amount paid to be determined based on how many claims are made.

The case has a long history, including controversial decisions by the District Court to certify the class in 2014, and a decision earlier this year to maintain certification despite the United States Supreme Court’s affirmation in Spokeo v. Robins that a mere statutory violation does not support Article III jurisdiction. The upcoming trial, which had been scheduled to begin on September 12, 2016, appeared to mark one of the few instances in which a TCPA class action would be resolved through trial and potential appeal.

While specific details are yet to arrive, this settlement illustrates the very real risks of TCPA class action litigation given the current uncertainty of the law. While the outcome at settlement is perhaps unique to this litigation, in part due to the District Court’s decisions to this point, further clarity on these key issues arising under the statute remains much needed.

Mobile App Operator Not Liable Under TCPA

In an important decision applying the FCC’s July 2015 Declaratory Ruling, a district court recently dismissed TCPA claims against Life360, a mobile application operator. See Cour v. Life360, Inc., Case No. 16-cv-00805-TEH (N.D. Cal. July 28, 2016). The decision provides critical guidance as to when users of a mobile app – rather than the mobile app provider – will be deemed to initiate the text messages, for purposes of assessing TCPA compliance. Continue reading   »

Ninth Circuit: Conditional Tender Does Not Moot Putative Class Action

In the wake of the Supreme Court’s decision in Campbell-Ewald v. Gomez, the Ninth Circuit has held that an offer tendering complete relief, conditioned on the dismissal of a putative class action, is insufficient to moot the action for purposes of Article III jurisdiction.

In Chen v. Allstate, No. 13-16816 (9th Cir. April 12, 2016), the defendant deposited in escrow an amount exceeding the value of the plaintiff’s individual TCPA claim. The escrow instructions conditioned the payment of the funds on the entry of an order from the district court dismissing the action as moot. The defendant asked the Ninth Circuit to supplement the record on its pending appeal, to hold that the tender had mooted the plaintiff’s claims under Article III, and to direct the district court to dismiss the action. Continue reading   »

Human Intervention After The FCC’s Declaratory Ruling

A recent decision illustrates the uncertainties wrought by the “case-by-case” approach of the FCC’s July 2015 Declaratory Ruling when applied in litigation. In Sherman v. Yahoo, Inc., the plaintiff challenged Yahoo’s messenger service, which converted instant messages submitted by Yahoo users from their computers to text messages that would be received on mobile devices. Plaintiff claimed that the Yahoo service sent her mobile device an unsolicited welcome message using automated dialing technology in violation of the TCPA. Yahoo moved for summary judgment, arguing that its service was not an automatic telephone dialing system (ATDS) as defined by the TCPA because messages could not be sent without human intervention.

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Ascertainability And TCPA Class Actions

An essential requirement for certifying a class under Rule 23 is a means for presently ascertaining who is or is not a member of the proposed class. A trio of recent district court decisions has applied this ascertainability requirement to proposed TCPA class actions. The cases reach different conclusions as to whether a list of telephone numbers is a necessary or sufficient means of ascertaining class membership.

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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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