In TCPA Blog’s latest Law360 column, Mike Daly, Meredith Slawe, and Dan Brewer discuss why courts should temporarily stay TCPA cases pending the regulatory appeal of the FCC’s July 10, 2015 Order, which is set for oral argument before the United States Court of Appeals for the D.C. Circuit on October 19, 2016. The article addresses the flaw in plaintiffs’ argument that they are prejudiced while awaiting a decision: Continue reading “Time For A Timeout In TCPA Litigation”
Michael Daly
Articles by Michael Daly:
Seventh Circuit Holds That TCPA Does Not Shift Attorneys’ Fees or Create Common Funds, Reverses Order Entitling Individual Plaintiffs To More Than $500 Per Violation
In Holzman v. Turza, Nos. 15-2164 & 15-2256, 2016 U.S. App. LEXIS 12594 (7th Cir. July 8, 2016), the Seventh Circuit reversed an order that could have resulted in individual payments of $500 per violation plus attorneys’ fees, i.e., more than the $500 in statutory damages for which the statute provides.
After the plaintiff prevailed on the merits, the trial court directed the defendant to deposit $4.215 million into court, which represented the $500 in statutory damages for each of the 8,430 faxes at issue. It then ordered that one third of the $4.215 million be used to pay class counsel and that two-thirds of the $4.215 million be used to pay class members. Id. at *3. Class members would be sent a check in the amount of $333 per fax, i.e., two thirds of $500. If, however, a check was uncashed or undeliverable, class members who had cashed their checks would receive a second distribution of up to $167 (i.e., so that their total recovery could, in theory, reach $500 per fax). Id. If any funds remained after that second distribution, then, and only then would they revert to the defendant. Id. Continue reading “Seventh Circuit Holds That TCPA Does Not Shift Attorneys’ Fees or Create Common Funds, Reverses Order Entitling Individual Plaintiffs To More Than $500 Per Violation”
Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order
Yesterday, the United States Court of Appeals for the D.C. Circuit scheduled oral argument for October 19, 2016 at 9:30 a.m. in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order (“Order”). As we previously reported, ACA International filed the first petition for review on the same day the Order was issued. That and subsequent appeals were centralized in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation. The Joint Petitioners filed their opening brief on November 25, 2015, Rite Aid filed a separate brief the same day that focused on healthcare-related issues, the FCC responded to both briefs on January 15, 2016, and the parties filed final briefs on February 24, 2016. Continue reading “Oral Argument Scheduled In The Consolidated Appeal From The FCC’s July 2015 Declaratory Ruling and Order”
The Rise Of The Professional TCPA Plaintiff
Filing TCPA actions has become a form of sport for certain plaintiffs. In TCPA Blog’s latest Law360 column, our TCPA Team addresses the manufacturing of TCPA claims, which came to a head in a recent case involving an unabashed professional plaintiff who purchased at least 35 cellphones and numbers with the sole purpose of receiving calls to recycled numbers and then filing suit and cashing in. The article notes the growing use (and abuse) of the TCPA by such plaintiffs:
Continue reading “The Rise Of The Professional TCPA Plaintiff”
Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria
In a decision that many saw as lowering the bar for class certification, the Eighth Circuit recently reversed a trial court’s decision that a putative class was not readily ascertainable by reference to objective criteria. Sandusky Wellness Center LLC v. Medtox Scientific Inc., No. 15-1317, 2016 WL 1743037 (May 3, 2016). The Eighth Circuit held that classes must be readily ascertainable, which it had yet to squarely do, but found that this particular class was ascertainable, as it included individuals who “were sent” the fax at issue and “fax logs show[ed] the numbers that received faxes.” In doing so, it rejected the argument that fax logs do not necessarily identify the “recipient” of a fax who would have standing under 47 U.S.C. § 227(b)(1). Continue reading “Courts Continue To Require That TCPA Classes Be Presently and Readily Ascertainable By Reference To Objective Criteria”
Campbell-Ewald — The ‘Offer Of Judgment’ Saga Continues
“Welcome to the great new world of TCPA litigation – where a plaintiff turns up his nose at $10,000 in cash to compensate him for his receipt of a single targeted text message recruiting for the United States Navy, and where our courts stretch the limits of Article III to preserve his crusade for a would-be class of others similarly situated.”-Seamus Duffy
It’s becoming a strange, strange world when it comes to making offers of complete relief to named plaintiffs in class actions. Continue reading “Campbell-Ewald — The ‘Offer Of Judgment’ Saga Continues”
Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses
U.S. Senator John Thune (R-S.D.), Chairman of the Senate Committee on Commerce, Science, and Transportation, convened a full committee hearing yesterday titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business.” Witnesses at the two-hour hearing included the Attorney General of Indiana and representatives of the U.S. Chamber Institute of Legal Reform, the National Consumer Law Center, and the American Association of Healthcare Administrative Management. Chairman Thune opened the hearing with the following observations: Continue reading “Senate Commerce Committee Holds Hearing On TCPA’s Effects On Consumers And Businesses”
Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages
Yesterday the Supreme Court issued its long-awaited decision in Spokeo, Inc. v. Robins, in which it was asked whether plaintiffs have Article III standing if they allege a bare violation of a statute (i.e., an injury in law) but no concrete harm (i.e., an injury in fact). Six of the eight sitting Justices agreed that an injury in law alone is insufficient and that plaintiffs must plead and prove concrete harm in order to satisfy Article III. Continue reading “Supreme Court Holds That Plaintiffs Need Concrete Harm In Order To Seek Statutory Damages”
Supreme Court Issues Decision in Spokeo, Inc. v. Robins
This morning the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins, which vacates the Ninth Circuit’s decision and remands for further proceedings. We are reviewing the majority opinion from Justice Alito (in which Justices Roberts, Thomas, Breyer, and Kagan joined), the concurring opinion from Justice Thomas, and the dissenting opinion from Justice Ginsburg (in which Justice Sotomayor joined), and will report back shortly.
Freedom of Contract Appears Alive and Well in the Third Circuit
Two federal courts in the Third Circuit recently compelled individual arbitration in TCPA actions. See Raynor v. Verizon Wireless, No. 15-5914, 2016 U.S. Dist. LEXIS 54678 (D.N.J. Apr. 25, 2016); Herndon v. Green Tree Serv. LLC, No. 15-1202, 2016 U.S. Dist. LEXIS 53937 (M.D. Pa. Apr. 22, 2016). Issued just a few days apart in cases against a telecommunications provider and a mortgage broker, these decisions serve as a helpful reminder to businesses to consider including arbitration clauses in their consumer contracts—and to explore their applicability when facing TCPA litigation. Continue reading “Freedom of Contract Appears Alive and Well in the Third Circuit”