Michael Daly

Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

View the full bio for Michael Daly at the Faegre Drinker website.

Articles by Michael Daly:


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.

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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.)

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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.)

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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.

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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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Third Circuit Holds That Consumers Can Withdraw Consent

In a case of first impression in the courts of appeal, the Third Circuit recently expanded the rights of consumers under the TCPA, holding that consumers may revoke their consent to be called on their wireless phones and that there is no time limitation on when they may do so. Gager v. Dell Financial Services, LLC, — F.3d –, 2013 WL 4463305 (3d Cir. Aug. 22, 2013).

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T-Minus 3, 2, 1…

Welcome!

If you are reading this post, chances are you already know a lot about the TCPA.  You don’t need to be told that it stands for “Telephone Consumer Protection Act.”  Or that it restricts certain telemarketing calls, texts and faxes by a labyrinthine mosaic of statutory provisions and FCC regulations.  Or that its ambiguities and statutory damages have made it a hotbed of litigation, particularly class action litigation.  Or that the courts are struggling to bring some sense and clarity to the entire regime, while defendants experience an almost hydraulic pressure to settle cases involving even the most innocent, hyper-technical violations.  You already know all of that.  And, you probably also know that there will be a major development in the law tomorrow, when the FCC’s new telemarketing rules requiring written consent finally take effect.  For a summary of the new rules, see our post here.

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