Justin O. Kay

Justin O. Kay

Justin Kay advises and defends business clients regarding their interactions and communications with consumers. He appears regularly on behalf of clients before federal and state courts, federal agencies and independent self-regulatory bodies, such as the National Advertising Division of the Better Business Bureau. Justin’s practice focuses on defending clients in the growing number of complex class actions arising under federal and state consumer protection and privacy laws such as the federal Telephone Consumer Protection Act, the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act. He is a deputy leader of the litigation practice group.

View the full bio for Justin O. Kay at the Faegre Drinker website.

Articles by Justin O. Kay:


Illinois Federal Court Follows Eleventh Circuit’s Broad Definition of “Sender” in Blast Fax Case

Through prior posts (see here, here, and here), we have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months ago, the FCC’s position, as originally set forth in a letter brief, was adopted by the Eleventh Circuit in Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (“Sarris”). The Sarris court held that “a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly” under the TCPA.

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The FTC Is Looking For A Few Good Robocall Hackers

The FCC is not the only federal agency tasked with regulating telephone calls. The FTC also regulates telephone calls pursuant to the Telemarketing Sales Rule (“TSR”) (16 C.F.R. § 310 et seq.). And while the scope of the TCPA and the TSR differs, the two sets of regulations overlap in a key area—prerecorded calls. See 47 C.F.R. § 227(b)(1); 16 C.F.R. § 310(b)(iv). As we have noted in a previous post, these regulations are not entirely consistent.

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Federal Court Finds That TCPA Plaintiff Consented To Debt Collection Calls by Providing Phone Number On Hospital Admission Form

On June 25, Judge Michael Anello of the Southern District of California granted summary judgment in favor of defendant Sharp Healthcare (“Sharp”) in Hudson v. Sharp Healthcare, 13cv1807-MMA, a purported class action alleging two counts under the TCPA (Count I for a negligent violation and Count II for a knowing/willful violation) regarding automated calls concerning unpaid hospital bills, ending that matter absent an appeal.

The original complaint was filed on August 2, 2013, and was comprised primarily of legal assertions (including citations to case law) and boilerplate asserting that defendant had violated the TCPA. The only purported fact alleged was that “Plaintiff was admitted to Sharp on or around September 25, 2012 and may have given them her cellular telephone number ending in 5954 at that time so Sharp could manually contact her about her treatment,” and that she did not consent to receiving autodialed calls. Complaint ¶¶ 14-15 [Dkt. No. 1] (emphasis added). The plaintiff later was granted leave to file an amended complaint that hedged her claims, alleging that if plaintiff provided her number to Sharp, “it was provided to Defendant solely to allow Defendant to contact Plaintiff about medical treatment follow-up” and reiterated that she “did not provide prior express consent to Defendant to be called by an [ATDS].” First Amended Complaint, ¶ 13 [Dkt. No. 29-2].

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