Revocation of Consent Must Be Reasonable and Recollected

Two recent decisions rebuffed TCPA claims arising from calls or text messages that were received after the called parties had allegedly revoked their consent. The decisions reinforce that plaintiffs who intend to pursue such claims must: (1) revoke their consent in a reasonable rather than contrived manner; and (2) support their claims with specific facts rather than conclusory allegations. Continue reading

Allegedly Deficient Opt-Out Language in Fax Did Not Give Rise to a Concrete Injury Under Spokeo

We’ve previously reported on the D.C. Circuit’s March 31 decision, which held that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. FCC, No. 14-1234, Slip. Op. at 4 (D.C. Cir. 2017). And as we recently discussed, the plaintiff intervenors in that case have sought a rehearing en banc. Given the significance of the D.C. Circuit’s decision in TCPA class actions, it would not be a surprise if the en banc petition is just the beginning of the plaintiffs’ bar’s efforts to attack the D.C. Circuit’s decision. While the D.C. Circuit’s ruling is welcome news to defendants in TCPA actions, the Eastern District of Missouri recently dealt another blow to the plaintiffs’ bar. In that regard, shortly before the D.C. Circuit’s ruling, a district court held that an allegedly deficient opt-out notice in a fax the plaintiff invited did not give rise to a concrete injury under Spokeo, and dismissed the case for lack of Article III standing. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 4:15-CV-517 RLW, 2017 U,S., Dist, LEXIS 39411 (E.D. Mo. Mar. 20, 2017). Continue reading

Are Insurance Renewal Notifications Telemarketing? Maybe.

As discussed here, the Central District of California recently granted summary judgment in favor of an insurance company after finding that a prerecorded call to the insured’s mobile phone, which reminded her to review her health plan options for the following year, was not telemarketing and therefore did not require “prior express written consent.” See Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. SACV 16-00108-CJC-KES (C.D. Cal. Jan. 13, 2017).

But just a few weeks ago, a different judge in the Central District reached the opposite conclusion in a similar case, and denied the defendant’s motion to dismiss. See Flores v. Access Ins. Co., No. 2:15-cv-02883-CAS-AGR (C.D. Cal. Mar. 13, 2017) (available here). These two decisions illustrate how courts continue to grapple with the distinction between “telemarketing” and “informational” calls. Continue reading

Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition

The initial comments are in on the Petition of serial plaintiffs Craig Moskowitz and Craig Cunningham to require written consent for autodialed informational calls, and reactions are overwhelmingly negative. A diverse group of trade associations, nonprofits, medical institutions, and others flooded the docket with over thirty formal comments opposing the Petition. In addition to these formal comments, there were several short, informal comments submitted via the FCC’s “express” filing system by employees of credit unions and other financial institutions opposing the Petition. Just three comments expressed support. 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

Central District of California Holds That Insurance Renewal Notifications Are Not Telemarketing Under the TCPA

The Central District of California recently granted summary judgment to a health insurer after finding that a pre-recorded message delivered to the insured’s cell phone reminding her to review her health plan options for the coming year was not telemarketing. Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. 16cv108 (C.D. Cal. Jan. 13, 2017), ECF No. 73.

In Smith, the plaintiff completed an application for health insurance through California’s Affordable Care Act Healthcare Marketplace, Covered California. As part of that application process, Plaintiff provided her cell phone number as “the best number at which to contact her.” As required by law, the insurance was set to automatically renew for 2016, and in 2015, Blue Shield attempted to contact Smith by sending written materials to her mailing address (as also required by law) to inform her of the changes to her plan and provide her with alternatives. Plaintiff’s materials, however, were returned to Blue Shield as undeliverable. As with other insureds whose materials were returned, Blue Shield followed up with a pre-recorded message stating in relevant part: “This is an important message from Blue Shield of California. It’s time to review your 2016 health plan options and see what’s new. Earlier this month, we mailed you information about your 2016 plan and benefit changes. It compares your current health plan to other options from Blue Shield. You can also find out more online at blueshieldca.com. If you have not received your information packet in the mail, or if you have any questions, please call the number on the back of your member ID card.” Plaintiff received the call on December 3, 2015; on December 6, 2015, she completed an application for a different insurance plan for the 2016 year. Continue reading

Parties Present Their Arguments Before The D.C. Circuit in The Consolidated Appeal

The U.S. Court of Appeals for the D.C. Circuit heard oral argument in the consolidated appeal of the FCC’s July 10, 2015 TCPA Declaratory Ruling and Order on Wednesday, October 19th. The panel was composed of Judges Sri Srinivasan, Cornelia T.L. Pillard and Harry T. Edwards. The argument was well attended and lasted nearly three hours – much longer than the forty minutes for which it had been scheduled. The panel’s questions primarily focused on the definition of an ATDS, the identity of the “called party” from whom consent must be obtained, the impracticality of the FCC’s one-call safe harbor, and the methods by which consumers may revoke consent. A small portion of the argument was devoted to healthcare-related messages. Continue reading

DC Circuit Court of Appeals Hears Extended Oral Argument In The Consolidated Appeal

As we previously reported, the United States Court of Appeals for the D.C. Circuit held oral argument this morning in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order. The issues before Judges Srinivasan, Pillard, and Edwards were: (1) the definition of an ATDS, particularly the Order’s treatment of the terms “capacity” and “using a random or sequential number generator;” (2) the identity of the “called party” from whom consent must be obtained and the impracticality of the Order’s one-call safe harbor provision; (3) the means by which consent may be revoked; and (4) whether healthcare-related calls should be afforded the same treatment they receive under HIPAA.

Paul Werner from Sheppard, Mullin, Richter & Hampton LLP argued on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day argued on behalf of the remaining joint petitioners, and Scott Noveck argued on behalf of the FCC. Although the argument was scheduled to last only forty minutes, it quickly became apparent that Judges Srinivasan, Pillard, and Edwards had concerns about portions of the Order and numerous questions for both parties. The argument ended up lasting more than two and half hours, the majority of which was devoted to what types of equipment qualify as an ATDS, and whether the one-call safe harbor provision strikes a tenable balance between protecting consumers and protecting callers that have been threatened with potentially annihilating liability for calling numbers in good faith that have been reassigned.

An audio recording of today’s argument is available here.

Oral Argument In The Consolidated Appeal To Be Heard This Upcoming Wednesday

As we previously reported, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order. Each side has been allotted twenty minutes of oral argument time, with petitioner Rite Aid arguing for five minutes on the healthcare-related issues of the Order, and the rest of the petitioners arguing fifteen minutes. Paul Werner from Sheppard, Mullin, Richter & Hampton LLP is scheduled to argue on behalf of petitioner Rite Aid, Shay Dvoretzky from Jones Day is scheduled to argue on behalf of the remaining joint petitioners, and Scott Noveck is scheduled to argue on behalf of the FCC. The argument will be heard before Judges Srinivasan, Pillard, and Edwards.

For those planning on attending, doors open around 9:10 a.m. and entry into the courtroom is on a first-come, first-served basis. Instructions on attendance can be found here. We plan to be in attendance and report back after the oral argument.

Parties Seek Twenty Minutes Of Oral Argument In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order

Yesterday, the petitioners in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order filed an unopposed motion seeking twenty minutes of oral argument for each side. As we previously reported, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal.

In requesting twenty minutes of oral argument time, the petitioners note the importance and the complexity of the issues raised in their petitions for review. Namely, “the kinds of equipment that fall within the [TCPA’s] restrictions on calls to wireless numbers from ‘automatic telephone dialing systems,” “the scope of liability for those who call numbers that (unbeknownst to them) have been reassigned from one, consenting consumer to another, non-consenting one,” “the methods by which consumers may revoke consent[,]” and the types of “informational healthcare-related” calls that fall outside of the TCPA’s scope.  As such, the petitioners request that each side be allotted twenty minutes of oral argument time with petitioner Rite Aid arguing five minutes on the healthcare-related issues of the Order and the rest of the petitioners arguing fifteen minutes.

We will continue to monitor the pending appeal and report on any significant developments before and after oral argument on October 19th.