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)”
Michael Daly
Articles by Michael Daly:
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”
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”
Court Cites Supreme Court’s China Agritech Decision In Decertifying TCPA Class Action
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”
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”
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”
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”
FCC’s Second Further Notice of Proposed Rulemaking on Reassigned Numbers Published in Federal Register; Comment Clock Begins
On March 22, 2018, the FCC adopted a Second Further Notice of Proposed Rulemaking (FNPRM) on reassigned numbers. On April 23, 2018, the FNPRM was published in the Federal Register, triggering the commenting period deadlines. Comments on the FNPRM must be submitted by June 7, and reply comments must be submitted by July 9, 2018. Continue reading “FCC’s Second Further Notice of Proposed Rulemaking on Reassigned Numbers Published in Federal Register; Comment Clock Begins”
A Call for Change: D.C. Circuit Dials Back FCC’s 2015 TCPA Ruling
Members of our TCPA Team recently published an alert with detailed analysis and insights into the D.C. Circuit’s long-awaited decision in ACA Int’l v. FCC, and its implications for litigation and TCPA compliance efforts. The alert also provides a look ahead to regulatory and legislative responses to this seminal decision.
Worth the Wait! D.C. Circuit Vacates Key Portions of FCC’s July 2015 TCPA Order
At the Federal Communications Bar Association’s TCPA symposium in D.C. last month, panelists from the Federal Communications Commission (FCC) and private practice expressed uncertainty regarding when the D.C. Circuit would issue its much-anticipated ruling in the appeal of the FCC’s July 2015 Declaratory Ruling and Order (the “2015 Order”). It turns out that that day is today. And the ruling was well worth the wait. Continue reading “Worth the Wait! D.C. Circuit Vacates Key Portions of FCC’s July 2015 TCPA Order”