A federal court recently held that a vendor of a VoIP service that allows callers to circumvent caller identification is not secondarily liable for the alleged TCPA violations of the caller that uses that service. See Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014).
Michael Daly
Articles by Michael Daly:
JPML Centralizes TCPA Class Actions in the Northern District of West Virginia
The Judicial Panel on Multidistrict Litigation (JPML) recently centralized four putative class actions asserting that the defendants (Monitronics International, Inc. and its agents) violated the TCPA by making telemarketing calls to numbers on the national Do Not Call Registry or to persons from whom they did not have consent. See In Re Monitronics International, Inc., Telephone Consumer Protection Act Litigation, MDL No. 2493 (Dec. 16, 2013). A copy of the JPML’s decision is available here.
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Plaintiff Withdraws Appeal Before Ninth Circuit Can Review Order Dismissing TCPA Class Action
As we previously reported, Plaintiff David Emanuel recently took an appeal from the Central District of California’s dismissal of a class action asserting that the Los Angeles Lakers violated the TCPA by sending text messages without the recipients’ consent. The trial court dismissed the case with prejudice after finding that the plaintiff had consented to the text message by sending the Lakers a text message of his own, and had parroted the definition of an ATDS rather than pleaded any facts tending to show that the Lakers had actually used one. See Emanuel v. L.A. Lakers, Inc., 12-9936, 2013 WL 1719035 (C.D. Ca. Apr. 18, 2013). The plaintiff then took an appeal in which Twitter and Path filed a notable amicus brief that railed against the veritable cottage industry of plaintiffs’ lawyers that is transforming “a statute intended to curb vexatious telemarketing” into a “vehicle for vexatious lawsuits.”
On New Year’s Eve, the plaintiff filed short “Notices of Settlement” informing both the trial court and Ninth Circuit that “this case has been settled in its entirety, on an individual basis” and that “the parties anticipate filing a Joint Motion for Dismissal with prejudice as to the named plaintiff and without prejudice as to the putative class within 45 days.” As of today, no such Motion appears on the Ninth Circuit or Central District of California dockets and (not surprisingly) the terms of the individual settlement have not been disclosed. So while the Central District of California’s decision still stands, a Ninth Circuit decision adopting its reasoning will unfortunately have to wait for another day.
Court Certifies TCPA Class Action and Subjects Defendant to Aggregate Liability After Discounting Contrary Authority
Despite a readily available forum for individual suits and the disproportionate and the potentially ruinous liability a TCPA class action presents, a New Jersey District Court nonetheless deemed a class action the superior mechanism for resolving a TCPA suit In A & L Indus., Inc. v. P. Cipollini, Inc., No. 12-7598, 2013 WL 5503303, at *5 (D.N.J. Oct. 2, 2013). The defendant then sought reconsideration, which the District Court recently denied.
The lawsuit arose from a fax advertisement that a marketing company sent to more than 4,000 recipients on behalf of defendant Cipollini, Inc., a roofing company. Id. at *1. Neither Cipollini nor the marketer had obtained prior express consent from these recipients. One of them, plaintiff A & L Industries, Inc., brought a class action alleging violations of the TCPA and other claims. Id.
Court Stays TCPA Class Action So Parties Can Request FCC Ruling Regarding Whether Defendants Used An Automatic Telephone Dialing System
The Southern District of Texas recently granted a motion to stay proceedings pending a primary jurisdiction referral to the FCC in Fried v. Sensia Salon, Inc., et al., No. 4:13-cv-00312, 2013 U.S. Dist. LEXIS 168645 (S.D. Tex. Nov. 27, 2013). A copy of the decision is available here.
Sensia, a beauty salon in Houston, contracted with Textmunications, Inc., a mobile technology company, which in turn contracted with Air2Web, a mobile messaging aggregator (“MMA”), to transmit text message advertisements to Sensia’s former and current customers. Plaintiffs allege violations of the TCPA, violations of § 305-053 of the Texas Business and Commerce Code (“TBCC”), invasion of plaintiffs’ privacy, and conspiracy to violate the TCPA and TBCC.
Say Goodnight, Facey: Twitter, Path File Amicus Brief in Ninth Circuit TCPA Appeal
The Los Angeles Lakers found allies recently in Twitter and Path, when the social media companies sided with the Lakers to oppose an appeal from a dismissal of a putative class action asserting TCPA claims based on allegedly unsolicited text messages. See Emanuel v. The Los Angeles Lakers, Inc., No. 13-55678 (9th Cir.)
During a 2012 preseason game, the Lakers invited patrons to “TEXT your message to 525377” if they wanted to have a personal message displayed on the Staples Center jumbotron. David Emanuel did just that, sending a text message that read: “I love you Facey. Happy Date Night.” He then received a text message from the team that advised him that the team had received, but might not display, his note: “Thnx! Txt as many times as you like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg&Data Rates May Apply. Txt STOP to quit. Txt INFO for info.” (Plaintiff then texted “STOP” and received another text message confirming receipt of his request, which he does not claim violated the TCPA.)
Ten Comical Parallel Acronyms, or: Ten TCPAs That Will Not Be Covered by the TCPA Blog
Our digital searches for new decisions under “TCPA or T.C.P.A.” have yielded some interesting (and, truth be told, lots of uninteresting) decisions about what we all know to be the TCPA. As it happens, though, they have also yielded decisions about a whole host of other “TCPAs,” for example the Trademark Cyberpiracy Prevention Act, the Tennessee Consumer Protection Act, the Texas Citizens’ Participation Act, and the New Jersey Toxic Catastrophe Prevention Act.
None of those TCPAs will be covered here, interesting though they may be. Nor will the following ten associations, alliances, advocates, or archeologists that also go by the name of “TCPA.” Unless, that is, they sue or are sued under the TCPA—which, at the rate things are going, is only a matter of time.
10. The Town and Country Planning Association
9. The Trusted Computing Platform Alliance n/k/a the Trusted Computing Group
8. The Texas Competitive Power Advocates
7. The Foundation for Theoretical and Computational Physics and Astrophysics
6. The Texas Crime Prevention Association
5. The Thai Crop Protection Association
4. The Turpanjian Center for Policy Analysis
3. The TI Calculator Programming Alliance
2. The Tennessee Council of Professional Archaeology
1. The Tantawangalo Catchment Protection Association
California State Court Holds That Equipment That Lacks Present Capacity to Use Random or Sequential Number Generator Is Not an ATDS
A few weeks ago we wrote about Hunt v. 21st Mortgage Corp., 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013), in which the United States District Court for the Northern District of Alabama took a narrow view of what qualifies as an automatic telephone dialing system (“ATDS”) under the TCPA. That definitional issue has been hotly contested because calls that do not use an ATDS do not need prior express consent. (Our prior summary of the issues and the Hunt decision is available here.)
Reminder: TCPA Claims Are Arbitrable
The District of Massachusetts recently found that TCPA claims arising from debt collection calls fall within the scope of an arbitration agreement that covered disputes relating to “violations of statute” or “the impositions or collection of principle.” Cyganiewicz v. Sallie Mae, Inc., Nos. 13-40068, 13-40067, 2013 U.S. Dist. LEXIS 153554, 153556, at *7 (D. Mass. Oct. 24, 2013).
In Cyganiewicz, plaintiffs brought suit against Sallie Mae, claiming that its collections practices violated the TCPA. Plaintiffs were the borrower and the co-signor on three promissory notes, all of which contained arbitration agreements that could have been (but were not) rejected by sending a signed rejection notice to Sallie Mae within sixty days of the disbursement of the loan. Id. at *2. Plaintiffs alleged that Sallie Mae made calls from automated dialing machines to collect the outstanding balance of their loans, including approximately 147 calls after plaintiffs requested that the calls stop. Plaintiffs argued that their arbitration agreements were not enforceable and that, even if they were, their TCPA claims were not arbitrable. The court found otherwise and granted Sallie Mae’s motion to dismiss for lack of subject matter jurisdiction.
New TCPA Rules Take Effect on October 16, 2013
The Telephone Consumer Protection Act of 1991 (“TCPA”)[1] places certain restrictions on telemarketing calls, text messages, and faxes. It has long been a favorite of the plaintiffs’ bar because it provides for statutory damages of $500 to $1500 per violation,[2] which in the aggregate can lead to substantial windfalls for plaintiffs. TCPA violations (even innocent ones) can place companies at significant risk and TCPA litigation has skyrocketed as a result.[3]
Last year, the Federal Communications Commission (“FCC”) added fuel to the fire by amending its TCPA rules and further restricting telemarketing calls.[4] The most significant of those amendments – which narrow and eliminate key statutory exemptions – will take effect tomorrow, on October 16, 2013.
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