Following on the heels of Plaintiff Joshua Thorne’s TCPA suit, the Donald J. Trump campaign was hit with a second TCPA lawsuit in as many days. See Roberts v. Donald J. Trump For President, Inc., No. 16-4676 (N.D. Ill. Apr. 26, 2016). The Roberts Complaint concerns the same message (“Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.”) and has been assigned to the same judge (Judge John Z. Lee) as the Thorne Complaint. The Roberts Complaint, however, differs in a couple of key respects. Continue reading
Monthly Archives: April 2016
Trump Campaign Sued In Federal Court in Illinois
Earlier this week, Illinois resident Joshua Thorne filed a purported class action against Donald J. Trump for President, Inc., in the Northern District of Illinois. See Thorne v. Donald J. Trump For President, Inc., No. 16-4603 (N.D. Ill. Apr. 25, 2016). The suit seeks statutory damages, attorneys’ fees, and injunctive relief for alleged TCPA violations. Thorne alleges that although he never provided his phone number to the Trump campaign, he recently received a text message from 88022 (an SMS short code leased by the Trump campaign) stating “Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.” Continue reading
Currently Pending FCC Petitions in TCPA Matters
With the TCPA dockets remaining active going into 2016, we decided to put together a list of notable petitions pending at the FCC. The following list provides details on most petitions that the FCC has yet to rule on, including links to the petition and, where applicable, the public notice, some background on the issues implicated by the petitions, and details on important dates associated with the proceeding. 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
What’s My Line? The FCC Seeks Comment on a Petition Seeking a Definition of “Residential Line”
On March 31, 2016, the FCC released a public notice (“Public Notice”) seeking comment on a petition for declaratory ruling filed by Todd C. Bank (“Petition”), an attorney who maintains a home-based law practice. As Bank’s Petition notes, the TCPA includes a number of restrictions that apply to residential lines. For example, among them, the TCPA provides that “[i]t shall be unlawful for any person . . . to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . .” See 47 U.S.C. § 227(b)(1)(B). In his Petition, Bank argues that these calling restrictions apply to any line registered as a residential telephone line, including those that are in fact used for business purposes by the subscriber. The resolution of this question could have wide-reaching implications for telemarketers, who might as a result have another screen to apply to potential calls as to whether a number held out as a business line is actually a residential line as classified by the telephone service provider. Continue reading
Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual
Since our December 8, 2015 blog post regarding the scope of vicarious liability, courts have continued to wrestle with the scope of vicarious liability under the TCPA and its ramifications with respect to class certification. A recent decision denying class certification based on lack of ascertainability of the class and commonality issues from the Southern District of Ohio in Barrett v. ADT Corp., No. 15-cv-1348, 2016 U.S. Dist. LEXIS 28767 (S.D. Ohio March 7, 2016), illustrates why class certification is an uphill battle in this context for plaintiffs in TCPA litigation. Continue reading
Death And Taxes Are Certain; TCPA Claims Are Not
In Hannabury v. Hilton Grand Vacation Co., LLC, No. 14-cv-6126, 2016 WL 1181789 (W.D.N.Y. Mar. 25, 2016), the District Court for the Western District of New York held that a named plaintiff’s TCPA claims do not survive his death.
Plaintiff had filed a putative class action against Hilton for placing calls to his cell phone in an attempt to sell interests in timeshare properties, even though he alleged that his phone number was listed on the national Do Not Call Registry. The named plaintiff, however, passed away before moving to certify a class. His estate brought a motion to substitute itself as the named plaintiff. Continue reading