House Judiciary Subcommittee Holds Hearing on Abusive TCPA Litigation

On Tuesday, June 13, 2017, the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on “Lawsuit Abuse and the Telephone Consumer Protection Act.”

Based on the testimony, statements, and questions at the hearing, it seems that the Subcommittee is in the very early stages of considering possible reforms to the TCPA. Although there is no draft legislation yet, nor even an agreement in principle of what changes to pursue, several members of the Subcommittee—including Subcommittee chairman Steve King and Judiciary Committee chairman Bob Goodlatte—seem committed to find a way to rein in the statute’s disproportionately high social costs while maintaining its core purpose of protecting consumer privacy. Indeed, both Representatives expressed significant concern regarding the concrete harms that the current wave of TCPA litigation is having—injuring businesses trying in good faith to comply with the law; depriving consumers of desired (and, in some cases, sorely needed) communications; and enriching a small cohort in the legal profession who are pursuing their personal profit rather than the welfare of the American consumer. Continue reading

D.C. Circuit Denies Petition for Rehearing En Banc in Appeal of Solicited Fax Rule

As we predicted, the D.C. Circuit today denied the plaintiff’s petition for a rehearing en banc of the panel decision striking down the FCC’s regulations requiring opt-out notices on solicited faxes. The per curiam order notes only that “[u]pon consideration of the petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied.” This result is hardly surprising given (i) the FCC Chairman’s current position that the panel decision overturning the FCC was correct (an anomaly that is the result of turnover at the Commission following the election results in November 2016) and (ii) the infrequency with which petitions for rehearing en banc are granted. We expect that the plaintiffs’ bar will continue its appeal efforts via a petition for writ of certiorari to the United States Supreme Court, but also expect that effort to meet the same fate as the petition for rehearing.

D.C. Circuit’s Guidance Still Needed After Recent Decisions on TCPA Pleading Requirements

For years, courts, litigants, and commentators have grappled with the TCPA’s definition of “automatic telephone dialing system” (“ATDS”). As a result of the FCC’s July 2015 Declaratory Ruling and Order, the debate has focused on the question of capacity, i.e., whether a device must have the present capacity to “(a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers” or—as the FCC found—if the potential capacity is sufficient. Continue reading

Federal Court Holds Mobile App Platform Did Not Make or Initiate Invitational Text Messages, Grants Summary Judgment

In a recent decision by the Southern District of California, summary judgment was entered in favor of a second-hand fashion retailer, Poshmark, in a putative class action. The court concluded that the user of the app, not Poshmark, had “made the calls” that invited the plaintiff to use the mobile app. See Reichman v. Poshmark, Inc., No. 16-2359, 2017 U.S. Dist. LEXIS 73769, at *11 (S.D. Cal. May 15, 2017). Continue reading

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

FCC Commissioner O’Rielly Addresses ACA International – TCPA Changes Afoot

May 4, 2017 was Star Wars Day (“May the Fourth . . .”), but it also marked the date of FCC Commissioner Michael O’Rielly’s speech to the ACA International Washington Insights Conference. Commissioner O’Rielly opened with a joke about the number of times ACA had to call him before he had the opportunity to accept its speaking invitation, and then moved on to discuss a number of ways in which he feels the TCPA has been expanded beyond the intended scope of the statute. O’Rielly cited ACA research showing that between 2010 and 2015 there was a 948 percent increase in litigants involved in TCPA-related lawsuits, but noted that “despite this, there is reason for optimism” with the change in FCC leadership. Continue reading

Plaintiff Intervenor Petitioners Challenge Majority Opinion in Bais Yaakov, Fail to Address Standing to Do So

As we’ve previously reported, on March 31, the DC Circuit issued a 2-1 opinion in the Bais Yaakov appeal holding that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. Given the profound impact we expect that ruling to have in TCPA fax litigation, it is no surprise that the plaintiffs’ bar is fighting that decision: on April 28, 2017, the plaintiff intervenors in the Bais Yaakov appeal filed a petition for rehearing en banc before the full D.C. Circuit. Continue reading

Rite Aid Wins Summary Judgment in TCPA Class Action Over Flu Shot Reminder Calls

A New York U.S. District Court Judge granted summary judgment in favor of defendant Rite Aid Headquarters Corp. in a putative TCPA class action involving flu vaccine reminder calls. The opinion in Zani v. Rite Aid Headquarters Corp., 14-cv-9701, was recently unsealed after originally being filed under seal on March 30, 2017. In Zani, the court found that Rite Aid’s call to the plaintiff’s cellphone that used a pre-recorded voice to remind him to get his flu shot fell under what the Court referred to as the “Health Care Rule,” which exempted the call from the prior written consent requirement for telemarketing calls under the TCPA. 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