Faegre Drinker
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Articles by Faegre Drinker:
The TCPA prohibits the use of an automatic telephone dialing system (“ATDS”) to place calls to wireless phones without the called party’s prior express consent. Because calls placed without the use of an ATDS are not subject to the TCPA’s prior express consent requirements, what constitutes an ATDS has been a hotly contested issue. This issue can be expected to take on even greater importance under the new FCC rules that take effect on October 16, because the “prior express consent” requirement will now require written consent. Telemarketers, it can be expected, may explore ways to abandon the use of equipment that would fall within the definition of ATDS and to modify or replace that equipment with something that would not be an ATDS.
Continue reading “Federal Court Takes Narrow View of What Constitutes an ATDS”
Fairly or unfairly, plaintiffs are disproportionately leveraged at the outset of a consumer class action case. The threat of aggregate damages and the power to inflict non-reciprocating discovery costs on a defendant is unsettling enough. Lately, some defendants have fought back by making offers of judgment under Federal Rule of Civil Procedure 68 at the inception of the case. In some courts, a prompt offer of judgment can moot the named plaintiff’s claims, leaving him or her without a “personal stake” in the litigation and thus no basis on which to pursue claims on behalf of a putative class. Cf. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528-29 (2013) (noting but not resolving circuit split). For what may be a relatively small payment to the named plaintiff, a defendant in those courts can avoid engaging in protracted litigation and the risk of class-wide statutory damages awards.
Continue reading “Offer of Judgment Prompts Motion for Class Certification, Which Is Immediately Denied”
In its recent decision in Holtzman v. Turza, No. 11-3188, 2013 WL 4506176 (7th Cir. Aug. 26, 2013), the Seventh Circuit held that unsolicited advertisements, even those presented in the guise of a newsletter providing advice, violate the TCPA.
Continue reading “Seventh Circuit: Facsimiles Feigning to Be Newsletters Are Still Advertisements under the TCPA”
