As we previously reported here, the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) recently expanded the definition of “automatic telephone dialing system,” at least within the Ninth Circuit. And in response, the FCC issued a Public Notice just last week (covered here) seeking further comment on how to interpret the ATDS definition in light of Marks. The comment period closes on October 24, 2018. Continue reading “Defendant in Marks v. Crunch San Diego, LLC Asks Ninth Circuit for Rehearing En Banc”
FCC Seeks Further Comment on the Definition of an ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC
On October 3, 2018, the FCC issued a Public Notice requesting further comment on “what constitutes an automatic telephone dialing system” under the terms of the TCPA in light of the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018). Continue reading “FCC Seeks Further Comment on the Definition of an ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC”
Save the Date! Drinker Biddle’s TCPA Team to Host TCPA Conference on November 14th
Please join our TCPA Team and distinguished panelists in our Washington, D.C. office on the afternoon of November 14th to discuss the evolving regulatory landscape, best practices for mitigating risk, and strategies for defending suits brought under the TCPA. The FCC regulations that added fuel to the TCPA fire—and, perhaps not coincidentally, this blog—will soon enjoy their fifth anniversary. And yet class actions and compliance questions continue to mount. Our experienced regulatory and class action counsel will discuss these and other important issues with a number of special guests, including:
- Peggy Daley, Berkley Research Group
- Robert DeWitte, Kurtzman Carson Consultants LLC
- Mary Ellen Kleiman, National Association of Chain Drug Stores
- William Maxson, Federal Trade Commission
- Joseph Wender, Senior Policy Advisor, Office of U.S. Sen. Edward J. Markey
- Hassan Zavareei, Tycko & Zavareei LLP
CLE credits will be available and a cocktail reception will be held after the conference. If you would like to attend, please contact us at TCPAteam@dbr.com.
District Court Holds Article III Standing Allegation Not Required to Remove
As we have frequently discussed, Article III standing is a recurring issue in TCPA cases. The Southern District of Florida recently added to the precedent in this area when it denied a plaintiff’s motion to remand, holding that defendants did not need to concede plaintiff’s Article III standing in their notice of removal. Gonzalez v. TCR Sports Broadcasting Holding, LLP, No. 18-cv-20048, 2018 WL 4292018 (S.D. Fla. Sept. 10, 2018). Continue reading “District Court Holds Article III Standing Allegation Not Required to Remove”
TCPA Claims Still Uncertain (Although Death and Taxes Remain So)
We previously discussed Hannabury v. Hilton Grand Vacation Co., LLC, a 2016 decision from the Western District of New York that held that TCPA claims do not survive a consumer’s death because penal claims extinguish at the party’s death and the TCPA is penal in nature. Continue reading “TCPA Claims Still Uncertain (Although Death and Taxes Remain So)”
Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take
As discussed here on the Blog, the Ninth Circuit ruled last Friday in Marks v. Crunch San Diego, LLC that equipment need not have the capacity to dial numbers randomly or sequentially to be an ATDS under the TCPA. Rather, according to the Ninth Circuit, it is sufficient for equipment to have the capacity “to store numbers to be called . . . and to dial such numbers automatically (even if the system must be turned on or triggered by a person)” to be an ATDS.
Law360 also published an article addressing the impact of the decision entitled “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take,” and TCPA Blog contributor Justin Kay was quoted in the article. Continue reading “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take”
Ninth Circuit Expands the Definition of an ATDS
The very first clause in the TCPA is the definition of an Automatic Telephone Dialing System, which the statute defines as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 USC 227(a)(1). Notwithstanding this limited definition, the Ninth Circuit today ruled in Marks v. Crunch San Diego, LLC that an ATDS means more than what the statute says. It did so by reordering the aforementioned definition’s words and replacing a conjunctive “and” with a disjunctive “or,” and holding that the term ATDS actually “means equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically (even if the system must be turned on or triggered by a person).” (emphasis added). By separating and reordering these clauses to de-couple the “random or sequential number generator” requirement from the storage requirement, the Ninth Circuit appears to have re-introduced (at least in the Ninth Circuit, and at least for now) the same over breadth and uncertainty that the D.C. Circuit appeared to rectify with its decision in ACA International. Continue reading “Ninth Circuit Expands the Definition of an ATDS”
Another District Court Rejects FCC Prior Orders on ATDS in Light of ACA International
One of the central issues before the D.C. Circuit in ACA International v. FCC was whether the FCC’s vague and expansive definition of an ATDS would withstand judicial scrutiny. It did not, and as we explained at the time the decision was issued, the D.C. Circuit set aside not only the portion of the FCC’s July 2015 Declaratory Ruling and Order pertaining to ATDS, but also the FCC’s prior rulings dating back to 2003. Following ACA International, and while the FCC considers how to amend its now-invalidated prior rulings, the plaintiffs’ bar has attempted to narrow the reach of ACA International, arguing that the D.C. Circuit set aside only the 2015 Declaratory Ruling and Order, and that the validity of the FCC’s prior rulings was not under review. Just as the D.C. Circuit rejected this argument, district courts across the country continue to reject this argument, most recently a federal district court in the Central District of California. Continue reading “Another District Court Rejects FCC Prior Orders on ATDS in Light of ACA International”
Trial Courts Split On Whether Consumers Can Unilaterally Revoke Contractual Consent
As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere. Continue reading “Trial Courts Split On Whether Consumers Can Unilaterally Revoke Contractual Consent”
Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability
We have previously written—both in this blog and in articles—about district courts dismissing TCPA claims after finding that the alleged injuries were not “traceable to” (i.e., caused by) the purported TCPA violations. Last week, the Eighth Circuit in St. Louis Heart Center, Inc. v. Nomax, Inc., — F.3d —, 2018 WL 3719694 (8th Cir. Aug. 6, 2018), held that plaintiff and a putative class lacked Article III standing to allege that fax advertisements did not contain a proper opt-out notice. Defendant had moved to dismiss the case for lack of Article III standing after removing the case from state court and the district court dismissed the claim because the alleged injuries were not traceable to the purported TCPA violation. Continue reading “Eighth Circuit Rules No Standing For TCPA Plaintiffs Due to Lack of Traceability”