This is the second of two posts discussing the Third Circuit’s recent TCPA decisions. This one, Dominguez v. Yahoo, Inc., No. 14-1751 (3d Cir.), concerns the proper interpretation of the term “automatic telephone dialing system” (“ATDS”), which is front and center in the consolidated appeal from the FCC’s July 10th Declaratory Ruling and Order.
On October 20, 2015, the U.S. District Court for the Eastern District of Wisconsin granted defendant Performant Technologies, Inc.’s (“Performant”) motion to continue a stay pending judicial review of the FCC’s July 10 TCPA order (previously discussed here) “in the interest of judicial economy.” Gensel v. Performant Technologies, Inc., No. 13-C-1196 (E.D. Wis. Oct. 20, 2015).
Defendants’ discussions of the Third Circuit’s recent decisions in Leyse v. Bank of America and Dominguez v. Yahoo have been all doom and gloom. Some of that disappointment is understandable, as the Third Circuit vacated notable defense rulings and expanded the scope of consumers who have statutory standing to file suit under the TCPA. On closer examination, however, both of the decisions offer not only a sword to plaintiffs but a shield to defendants. This is the first of two posts that will dissect those decisions and discuss their implications for the ever-growing number of defendants that are facing TCPA claims.
The Missouri Attorney General’s Office recently filed a complaint in the Eastern District of Missouri against Charter Communications, Inc. (“Charter”), a cable, internet, and telephone company. The complaint alleges violations of the TCPA, the Telemarketing Sales Rule, the Missouri No-Call Law, and the Missouri Telemarketing Practices Law, and seeks what amounts to multi-millions of dollars in civil penalties. See State of Missouri ex rel. v. Charter Commc’ns, Inc., No. 15-01593 (E.D. Mo. filed Oct. 19, 2015).
Last week the Supreme Court heard oral argument in Campbell-Ewald Company v. Gomez, a TCPA case that concerns (among other things) whether the claims of the named plaintiff in a putative class action will be mooted by an unaccepted offer of complete relief. For those who were unable to attend the spirited oral argument, audio and a transcript are available here.
Plaintiffs’ firms recently filed six different applications for review of the Consumer and Governmental Affairs Bureau’s Order granting 117 petitions for retroactive waivers of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). Because the deadline for filing a petition for reconsideration pursuant to 47 C.F.R. § 1.429 had passed, several firms have tried to seek reconsideration by filing applications for review pursuant to 47 C.F.R. § 1.115.
The U.S. District Court for the Eastern District of North Carolina recently adopted a magistrate judge’s recommendation that summary judgment be entered in favor of a defendant because it had a good faith belief that it had consent to call the plaintiff’s number.
In Danehy v. Time Warner Cable Enterprises, Case No. 14-cv-133 (E.D.N.C.), a pro se plaintiff (“Plaintiff”) alleged that Time Warner violated the TCPA by using an automated telephone dialing system (“ATDS”) to call his cellular phone that was registered on the national do-not-call registry. The phone number at issue had previously belonged to a Time Warner customer who had provided the phone number as a secondary contact for Time Warner to use when he could not be reached at his primary phone number. Time Warner had made calls to, and received calls from, the customer using the number numerous times in the past. The number was eventually assigned to Plaintiff in August or September 2013.
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.