In TCPA Blog’s latest Law360 column, Mike Daly, Meredith Slawe, and Dan Brewer discuss why courts should temporarily stay TCPA cases pending the regulatory appeal of the FCC’s July 10, 2015 Order, which is set for oral argument before the United States Court of Appeals for the D.C. Circuit on October 19, 2016. The article addresses the flaw in plaintiffs’ argument that they are prejudiced while awaiting a decision: Continue reading
In Holzman v. Turza, Nos. 15-2164 & 15-2256, 2016 U.S. App. LEXIS 12594 (7th Cir. July 8, 2016), the Seventh Circuit reversed an order that could have resulted in individual payments of $500 per violation plus attorneys’ fees, i.e., more than the $500 in statutory damages for which the statute provides.
After the plaintiff prevailed on the merits, the trial court directed the defendant to deposit $4.215 million into court, which represented the $500 in statutory damages for each of the 8,430 faxes at issue. It then ordered that one third of the $4.215 million be used to pay class counsel and that two-thirds of the $4.215 million be used to pay class members. Id. at *3. Class members would be sent a check in the amount of $333 per fax, i.e., two thirds of $500. If, however, a check was uncashed or undeliverable, class members who had cashed their checks would receive a second distribution of up to $167 (i.e., so that their total recovery could, in theory, reach $500 per fax). Id. If any funds remained after that second distribution, then, and only then would they revert to the defendant. Id. Continue reading
Over two years ago, we first argued that a pharmacist’s prescription refill reminder calls fell within the emergency purpose exception to the TCPA in Kolinek v. Walgreen Co. (N.D. Ill.). The TCPA, of course, prohibits many types of autodialed or pre-recorded/artificial voice calls to cell phones if made without the prior express consent of the called party, except where the calls are made “for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). In Kolinek, the court held at the motion to dismiss stage that further factual development was necessary to evaluate whether the emergency purpose exemption precluded plaintiff’s claims because the complaint did not allege sufficient detail regarding the nature of the calls. Although the case settled before the court had the opportunity to rule on the issue on summary judgment, the court acknowledged the viability of the emergency purposes defense as a basis for approving the class action settlement despite objections that the settlement fund was a tiny fraction of potential liabilities. Continue reading
As we’ve previously discussed, while First Amendment challenges to the TCPA have largely been unsuccessful, First Amendment challenges to restrictions on calls or texts made in connection with political campaigns may fare differently. Further evidence of this distinction came last week, when a district court in the Eastern District of Arkansas declared Arkansas’s restriction on using automated or prerecorded telephone calls to “‘solicit information, gather data, or for any other purpose in connection with a political campaign’” unconstitutional as “a content-based regulation that does not survive strict scrutiny.” Gresham v. Rutledge, No. 16cv241, 2016 U.S. Dist. LEXIS 97964, at *2-3 (E.D. Ark. July 27, 2016) (quoting Ark. Code Ann. § 5-63-204(a)(1)). Continue reading
For some time the FCC’s Chairman, Tom Wheeler, has been calling on wireless and wireline carriers alike to take more aggressive steps to assist consumers in preventing unwelcome or unsolicited calls and spam messages. The FCC’s July 10, 2015 Declaratory Ruling, for example, contained a discussion focused on resolving the question of whether carriers had a legal obligation to transmit all calls without blocking. In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd 7961, ¶¶ 152-63 (July 10, 2015). The Declaratory Ruling affirmed that nothing in the Communications Act or FCC rules or orders prohibits carriers from offering or implementing call blocking technologies for those customers who choose to use them. Id. Continue reading