As our regular readers know, one of the central issues in the ACA International case was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. The D.C. Circuit found that it did not. As we explained at the time, ACA International explicitly set aside the portion of the FCC’s July 2015 Order that pertained to the definition of an ATDS, and by doing so also implicitly set aside the FCC’s prior statements on this subject in prior orders. Continue reading
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
In TCPA Blog’s latest column for Law360, Mike Daly and Meredith Slawe discuss the “unrelenting” pace of TCPA litigation in 2017, particularly claims targeting retail text message programs. They discuss the FCC’s rulings on number of issues and explore the different approaches of the previous administration and the current administration under Chairman Ajit Pai. They also recount what Chairman Pai has described as the “ridiculous lengths” to which some plaintiffs have gone to exploit the TCPA:
That was, if anything, an understatement. Some plaintiffs have taken to buying phones and requesting area codes for regions where debt collection calls are common, hiring staff to log calls in order to file hundreds of lawsuits, porting a repeating digit phone number from a landline to a cellphone, asking employees to text ‘JOIN’ to unknown company numbers, and even teaching classes on how to sue telemarketers. Others have sent demand letters after purporting to revoke their consent—often moments after enrolling in a text program—by using anything other than the obvious word “stop.” These plaintiffs will receive text advising them that they can opt out by texting “stop” but will try to trap businesses by responding with unorthodox synonyms such as “cease,” “desist,” “refrain,” or “halt,” which will not trigger many opt-out mechanisms. Responses such as these are not even believable, let alone “reasonable.” And the certification of a class of such people would be inappropriate for a whole host of reasons. But plaintiffs know that defending even these claims would not be without cost or inconvenience, and businesses continue to receive demand letters every day.
They conclude that, “[i]n the absence of meaningful congressional or regulatory reform and as we await a ruling from the D.C. Circuit on the proper interpretation of the statute, retailers should continue to mitigate their TCPA risk by observing best practices and engaging in active vendor management.”
Dish Network LLC (“Dish”) recently filed a motion for a new trial after a jury found Dish liable for more than 51,000 calls to 18,000 class members, resulting in an award of $20.5 million.
In Krakauer v. Dish Network LLC, No. 14-0333 (M.D.N.C.), the plaintiff alleged that he had received telemarketing sales calls from an authorized dealer of Dish despite registering his number on the National Do Not Call Registry. He further alleged that these calls continued even after his telephone number was placed on both Dish’s and its authorized dealer’s internal Do Not Call Lists. Before trial, the court certified two classes: the first consisting of persons who received telemarketing calls despite having their telephone numbers on the National Do No Call Registry, and the second consisting of persons who received telemarketing calls despite having their telephone numbers on the internal Do Not Call Lists of Dish or its authorized dealer. Continue reading
One of our recent articles discussed how federal courts have analyzed the “traceability” element of Article III in TCPA cases. Specifically, we noted that two federal courts had cited Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) in dismissing claims because the alleged injuries were not “traceable to” (i.e., caused by) the purported violations. See Ewing v. SQM US Inc., No. 16-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 15-0193, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016). In their view the “violation” was not the act of dialing a number, but rather the act of dialing a number with an ATDS. Because the plaintiffs’ alleged injuries would have been the same if the defendants had dialed their numbers manually, the courts found that the plaintiffs lacked Article III standing because their alleged injuries were not traceable to the use of an ATDS. Although the cases involved only one or two calls, the courts did not limit their traceability analyses to that context. Nevertheless it remained unclear whether this rigorous approach to traceability would be applied more broadly in other contexts. Continue reading
On July 10, 2015, a sharply divided FCC issued a Declaratory Ruling and Order (the “July 2015 Order”) that missed the mark. The July 2015 Order purported to expand the scope of the TCPA through its unsupported redefinition of an “automatic telephone dialing system,” create an untenable one call “safe harbor” for reassigned number liability, and permit parties to revoke consent through any “reasonable” means. The July 2015 Order is presently on appeal in the D.C. Circuit, and there is hope that the Court, which heard argument on October 19, 2016, will undo its pronouncements, which have had broad implications for businesses that place calls and send text messages to consumers for telemarketing or informational purposes. These companies have faced potentially crushing liability through a huge wave of TCPA actions (both proposed class actions and individual claims) as well as pre-suit demands, many of which have been initiated by opportunistic plaintiffs’ lawyers and serial plaintiffs. Continue reading