The Northern District of Illinois recently granted a motion to decertify a class of TCPA plaintiffs in light of the U.S. Supreme Court’s decision in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), which held that the equitable tolling doctrine does not apply to successive class actions. See Practice Mgmt. Support Servs., Inc. v. Cirque du Soleil, Inc., No. 14-2032, 2018 WL 3659349 (N.D. Ill. Aug. 2, 2018). In doing so, the court observed that plaintiffs can no longer “wait out” a statute of limitations and then “piggy back on an earlier, timely filed class action.” Id. at *1. Continue reading “Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action”
Texas Federal Court Compels Arbitration of TCPA Claims, Grants Motion of Nonsignatory to Agreement
The U.S. District Court for the Northern District of Texas recently granted a defendant debt collection agency’s motion to compel arbitration in a TCPA case. See Bow v. Ad Astra Recovery Servs., Inc., No. 18-0510-G, 2018 WL 3455510 (N.D. Tex. July 18, 2018) (available here). In doing so, the court enforced an arbitration agreement that the debt collection agency had never signed, on the ground that the agreement expressly referenced the agency as an “affiliate” of the two lenders that had signed the agreement. The court’s decision provides helpful guidance for enforcing arbitration agreements, particularly in the context of a loan agreement that may lead to debt collection efforts—and potential TCPA exposure. Continue reading “Texas Federal Court Compels Arbitration of TCPA Claims, Grants Motion of Nonsignatory to Agreement”
Court Denies Plaintiff’s Summary Judgment Motion, Cites Factual Dispute Regarding Whether Plaintiff Revoked Consent
The Eastern District of Michigan recently denied a plaintiff’s motion for summary judgment because the defendant raised a genuine issue of material fact regarding whether the plaintiff had revoked his consent to receive the challenged calls. See Mayang v. PAR Grp., Inc., No. 17-12447, 2018 U.S. Dist. LEXIS 118784 (E.D. Mich. July 17, 2018). Continue reading “Court Denies Plaintiff’s Summary Judgment Motion, Cites Factual Dispute Regarding Whether Plaintiff Revoked Consent”
Allegations of Equipment’s Potential Functionalities Not Sufficient to Survive Motion to Dismiss after ACA Int’l
On July 12, 2018, the Northern District of Ohio dismissed a complaint that failed to “allege any facts that [the defendant] uses a system that has the ability to store or produce telephone numbers to be called using a random or sequential number generator.” Lord v. Kisling, Nestico & Redick, LLC, No. 1:17-CV-01739, 2018 WL 3391941, at *3 (N.D. Ohio July 12, 2018). It is the latest court to follow the lead of the D.C. Circuit’s ruling in ACA Int’l v. FCC, 885 F.3d 687, 692 (D.C. Cir. 2018), that vacated the FCC’s interpretation of automatic telephone dialing systems (“ATDS”). Continue reading “Allegations of Equipment’s Potential Functionalities Not Sufficient to Survive Motion to Dismiss after ACA Int’l”
TCPA Rulings Give Companies Liability Shield, But No Knockout
TCPA Blog contributors Michael Daly and Marsha Indych provided commentary for Law360 on the Third Circuit’s recent decision that Yahoo’s email-to-text alert system does not qualify as an automatic telephone dialing system under the TCPA. Continue reading “TCPA Rulings Give Companies Liability Shield, But No Knockout”
Following ACA Int’l, Third Circuit Holds that Yahoo!’s Email-to-Text System is not an ATDS
The Third Circuit recently affirmed the Eastern District of Pennsylvania’s finding that Yahoo!’s email-to-text alert system does not qualify as an automatic telephone dialing system (“ATDS”). (Our previous discussions of this case are here, here, and here.) Following the District of Columbia Circuit’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Third Circuit held that the system at issue must be analyzed using a “present capacity” standard and that the plaintiff had failed to present any evidence to show that, under this standard, the system could function as an autodialer. Continue reading “Following ACA Int’l, Third Circuit Holds that Yahoo!’s Email-to-Text System is not an ATDS”
TCPA Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter, the Intended Recipient of its Debt-Related Calls
One of the central issues that was before the D.C. Circuit in ACA International v. FCC was whether the term “called party” refers to the intended or the unintended recipient of a call. In its July 10, 2015 Declaratory Ruling and Order, the FCC interpreted the term to be the current “subscriber” on the account to which the phone number is assigned or “the non-subscriber customary user of the phone.” Under this interpretation, businesses that try in good faith to contact consumers who have consented to receive such calls face significant liability with minimal recourse, when those calls reach someone else. The D.C. Circuit set aside the FCC’s “treatment of reassigned numbers as whole,” which includes its interpretation of called party. In light of the D.C. Circuit’s ruling, the FCC is currently seeking comment on critical TCPA issues with an eye toward taking a much broader view of the TCPA landscape than it did in its 2015 TCPA Order. In the meantime, one business involved in a TCPA action is seeking indemnification from the consumer it intended to reach in making the calls that form the basis of the TCPA action against it. Continue reading “TCPA Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter, the Intended Recipient of its Debt-Related Calls”
Comments Filed in Reassigned Numbers and Post-ACA International Proceedings
Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). Continue reading “Comments Filed in Reassigned Numbers and Post-ACA International Proceedings”
District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC
The District of Arizona recently became one of the first courts in the country to address the definition of an ATDS in light of the D.C. Circuit’s blockbuster ruling in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). Our previous client alert regarding ACA predicted that the decision would provide TCPA defendants with increased opportunities to defeat claims based on plaintiffs’ failure to prove the use of an ATDS. The Herrick v. GoDaddy.com, LLC case exemplifies how defendants can use the ACA decision to combat TCPA claims on this issue and hopefully foreshadows an emerging wave of favorable decisions. Continue reading “District of Arizona Grants Summary Judgment on ATDS Issues in the Wake of ACA International v. FCC”
Testimonial Evidence Sufficient to Defeat Class Certification: Court Denies Class Cert on Basis of Defendant’s Testimony Regarding Its Compliant Practices
The Southern District of Ohio recently denied class certification because the defendant’s unrebutted testimony—which established that its procedures ensured that faxes were only sent to those who had given their prior express permission—created individualized issues that predominated over any common ones. See Sawyer v. KRS Biotechnology, 2018 U.S. Dist. LEXIS 8595 (S.D. Oh. May 30, 2018). Continue reading “Testimonial Evidence Sufficient to Defeat Class Certification: Court Denies Class Cert on Basis of Defendant’s Testimony Regarding Its Compliant Practices”