The initial comments are in on the Petition of serial plaintiffs Craig Moskowitz and Craig Cunningham to require written consent for autodialed informational calls, and reactions are overwhelmingly negative. A diverse group of trade associations, nonprofits, medical institutions, and others flooded the docket with over thirty formal comments opposing the Petition. In addition to these formal comments, there were several short, informal comments submitted via the FCC’s “express” filing system by employees of credit unions and other financial institutions opposing the Petition. Just three comments expressed support. Continue reading “Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition”
Michael Daly
Articles by Michael Daly:
Central District of California Dismisses TCPA Claims Due to a Lack of Traceability
One of our recent articles discussed how federal courts have analyzed the “traceability” element of Article III in TCPA cases. Specifically, we noted that two federal courts had cited Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) in dismissing claims because the alleged injuries were not “traceable to” (i.e., caused by) the purported violations. See Ewing v. SQM US Inc., No. 16-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 15-0193, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016). In their view the “violation” was not the act of dialing a number, but rather the act of dialing a number with an ATDS. Because the plaintiffs’ alleged injuries would have been the same if the defendants had dialed their numbers manually, the courts found that the plaintiffs lacked Article III standing because their alleged injuries were not traceable to the use of an ATDS. Although the cases involved only one or two calls, the courts did not limit their traceability analyses to that context. Nevertheless it remained unclear whether this rigorous approach to traceability would be applied more broadly in other contexts. Continue reading “Central District of California Dismisses TCPA Claims Due to a Lack of Traceability”
Northern District of California Rejects First Amendment Challenge to the TCPA
A federal judge in the Northern District of California recently denied a motion to dismiss a putative class action accusing Facebook of violating the TCPA by sending text messages reminding users about their friends’ birthdays. In so doing, the court rejected Facebook’s First Amendment challenge and found that the TPCA survived strict scrutiny. Brickman v. Facebook, Inc., No. 16-0751, 2017 U.S. Dist. LEXIS 11849 (C.D. Cal. Jan. 27, 2017). Continue reading “Northern District of California Rejects First Amendment Challenge to the TCPA”
The Tide Is Turning: Ajit Pai Chosen To Head FCC
On July 10, 2015, a sharply divided FCC issued a Declaratory Ruling and Order (the “July 2015 Order”) that missed the mark. The July 2015 Order purported to expand the scope of the TCPA through its unsupported redefinition of an “automatic telephone dialing system,” create an untenable one call “safe harbor” for reassigned number liability, and permit parties to revoke consent through any “reasonable” means. The July 2015 Order is presently on appeal in the D.C. Circuit, and there is hope that the Court, which heard argument on October 19, 2016, will undo its pronouncements, which have had broad implications for businesses that place calls and send text messages to consumers for telemarketing or informational purposes. These companies have faced potentially crushing liability through a huge wave of TCPA actions (both proposed class actions and individual claims) as well as pre-suit demands, many of which have been initiated by opportunistic plaintiffs’ lawyers and serial plaintiffs. Continue reading “The Tide Is Turning: Ajit Pai Chosen To Head FCC”
There’s a Ketch: Court Reverses Entry of Summary Judgment in Favor of Plaintiffs with Muddled Timeline
A recent appellate opinion out of Oklahoma state court provides an important reminder that putative classes should not include people who did not receive the communication at issue. See Ketch v. Royal Windows, 113986 (Ct. Civ. App. Okla., Nov. 08, 2016).
In Ketch, the plaintiff filed suit after receiving an allegedly unsolicited fax advertisement from the defendant, from which it had previously requested a catalog. The defendant admitted that the fax advertisement did not have any opt-out language and evidently did not seek a retroactive waiver from the FCC. The plaintiff then moved for summary judgment on behalf of itself and a previously certified class. The trial court granted that motion, finding that Royal was liable to the tune of $290,000.00, i.e., $500 for each fax that had been transmitted. Continue reading “There’s a Ketch: Court Reverses Entry of Summary Judgment in Favor of Plaintiffs with Muddled Timeline”
Technology for Effective TCPA Defense: What You Need to Know
TCPA Blog contributor Michael Stortz will co-present a LiveVox webinar on “Technology for Effective TCPA Defense: What You Need to Know” on Wednesday, November 30, 2016. This webinar will provide an in-depth look at how to effectively utilize technology as part of a multifaceted TCPA defense strategy. Panelists will discuss best practices for the initial technology assessment; managing the ongoing assessment of technology; and leveraging technology in defending a TCPA claim. The webinar will also examine the technology behind TCPA suits, including how to assess what is—and is not—an automatic telephone dialing system, and how courts are responding to the use of technology.
Registration for the webinar can be found at the LiveVox website.
TCPA Blog Nominated As A Best Legal Blog of 2016
For more than three years, our team has been providing you with breaking news and important information about litigation and regulation under the TCPA. We hope that you have enjoyed reading our blog as much as we have enjoyed writing it. If you have, we invite you to consider supporting our blog by voting for it in this year’s Best Legal Blog Contest. To do so, please click here and cast your vote. Thank you for your support!
Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability
The Northern District of Ohio recently dismissed a TCPA action because the plaintiff failed to allege any facts from which the court could conclude that the defendant was directly or vicariously liable for the alleged calls. See Seri v. CrossCountry Mortgage, Inc., No. 16-01214, 2016 WL 5405257 (N.D. Ohio Sept. 28, 2016).
In Seri, the plaintiff alleged that defendant Direct Source – a telemarketing vendor – made at least twenty unsolicited telemarketing calls to the plaintiff’s cellular telephone using an ATDS. He further alleged that defendant CrossCountry Mortgage, Inc. (“CrossCountry”) regularly had third-party telemarketers make telemarketing calls on its behalf and had an “extensive relationship” with Direct Source. Continue reading “Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability”
Reconsidering The Traceability Element of Constitutional Standing
In TCPA Blog’s latest column for Law360, Michael Daly, Justin Kay and Victoria Andrews addressed the issue of an alleged injury’s traceability to an alleged TCPA violation, which was recently highlighted in Romero v. Dep’t Stores Nat’l Bank and Ewing v. SQM US Inc. The United States District Court of the Southern District of California dismissed both cases based on a lack of constitutional standing because the alleged injuries could not be specifically traced back to the use of an Automatic Telephone Dialing System (“ATDS”). The decisions explained that, if the alleged injury would have been the same had the calls been dialed manually, then it could not be traced to use of an ATDS:
The court reasoned that “Mr. Ewing would have been no better off had Defendants dialed his number manually” since “[h]e would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion,” and cited McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998) for the proposition that “‘[a] plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.’” Id. at 5:4-12. Because the plaintiff “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA,” he lacked “standing to make a claim for the TCPA violation here.” Id. at 4:14-16.
The column examines the Romero and Ewing decisions and explores whether other courts will accept this defense in future TCPA cases.
Read “Reconsidering ‘Traceability’ Element of TCPA Standing.”
3 Factors to Weigh in Deciding To Fight Or Fold TCPA Suits
TCPA Blog’s Michael Daly and Meredith Slawe were recently quoted in the Law360 article, “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.” They explained that “[t]he best approach to defending TCPA cases is to master the facts of each case as early as possible and map out multiple paths to victory. Oftentimes, the smallest details can mean the difference between whether or not a call qualifies as ‘telemarketing’ or a consumer provided ‘consent’ or equipment qualifies as an ‘automatic telephone dialing system.’” The remainder of the article examines other factors from both plaintiffs’ and defendants’ perspectives.
Read “3 Factors to Weigh in Deciding to Fight or Fold TCPA Suits.”