For years, courts, litigants, and commentators have grappled with the TCPA’s definition of “automatic telephone dialing system” (“ATDS”). As a result of the FCC’s July 2015 Declaratory Ruling and Order, the debate has focused on the question of capacity, i.e., whether a device must have the present capacity to “(a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers” or—as the FCC found—if the potential capacity is sufficient. Continue reading “D.C. Circuit’s Guidance Still Needed After Recent Decisions on TCPA Pleading Requirements”
Category - "Consolidated Appeal"
Plaintiff Intervenor Petitioners Challenge Majority Opinion in Bais Yaakov, Fail to Address Standing to Do So
As we’ve previously reported, on March 31, the DC Circuit issued a 2-1 opinion in the Bais Yaakov appeal holding that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. Given the profound impact we expect that ruling to have in TCPA fax litigation, it is no surprise that the plaintiffs’ bar is fighting that decision: on April 28, 2017, the plaintiff intervenors in the Bais Yaakov appeal filed a petition for rehearing en banc before the full D.C. Circuit. Continue reading “Plaintiff Intervenor Petitioners Challenge Majority Opinion in Bais Yaakov, Fail to Address Standing to Do So”
FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits
TCPA Blog contributor Justin Kay was recently quoted in the Law360 article, “FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits.” The D.C. Circuit’s recent decision negating an FCC regulation requiring opt-out notices on solicited faxes is likely to have long-term consequences for TCPA class actions. Continue reading “FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits”
D.C. Circuit refutes FCC’s Authority to Require Opt-out Notices on Solicited Faxes . . . and Chairman Pai Agrees
In a post immediately following the November 8, 2016 oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234 (D.C. Cir.), we noted that, based on the lines of questioning from the bench, the three judge panel of Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph appeared to be leaning toward a 2-1 decision with Judges Kavanaugh and Randolph likely forming the majority that would find that the FCC was not empowered to require opt-out notices on solicited faxes. On March 31, the DC Circuit issued its opinion and confirmed our analysis, finding in a 2-1 opinion authored by Judge Kavanaugh (joined by Judge Randolph) that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. The Court therefore vacated the 2006 Fax Order and remanded to the FCC for further proceedings. It declined to address the propriety of the waiver program, finding it moot in light of its holding. Slip. Op. at 11 n.2. Continue reading “D.C. Circuit refutes FCC’s Authority to Require Opt-out Notices on Solicited Faxes . . . and Chairman Pai Agrees”
Second Circuit Affirms Denial of Certification Because Putative Class is Unascertainable, but Holds Receipt of Phone Calls Confers Standing
Last week, the Second Circuit, in Leyse v. Lifetime Entertainment Servs., LLC, affirmed the denial of class certification in a putative TCPA prerecorded message class action for lack of an ascertainable class. (We previously blogged about this district court decision.) Lifetime, concerned that viewership of its hit show “Project Runway” would suffer due to a channel change, hired a third-party vendor, OnCall Interactive, to contact New York City residents with a prerecorded message from the show’s host informing potential viewers of the channel change. Leyse v. Lifetime Entertainment Servs., LLC, No. 13-cv-5794, 2015 WL 5837897, at *1 (S.D.N.Y. Sept. 22, 2015). OnCall, in turn, purchased a list of phone numbers from an unknown third-party vendor; Lifetime never obtained that list. Id. at *2. Continue reading “Second Circuit Affirms Denial of Certification Because Putative Class is Unascertainable, but Holds Receipt of Phone Calls Confers Standing”
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”
D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order
On November 8, 2016, a three judge panel (Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph) of the United States Court of Appeals for the D.C. Circuit heard oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234. The argument (which lasted ninety minutes) was divided into two portions: argument regarding whether the FCC had authority to require the inclusion of opt-out notices on solicited faxes, and argument regarding whether the FCC was authorized to grant retroactive waivers of that requirement. Our prior posts on the appeal can be found here, here, and here. The audio recording of the argument is available here. Continue reading “D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order”
Second Circuit Moots Class Claims Based on Offer of Judgment
The Second Circuit last week confirmed that entries of judgment satisfying an individual plaintiff’s claims moot TCPA class actions.
In Bank v. Alliance Health Networks, LLC, No. 15-cv-4037 (2d Cir. Oct. 20, 2016), the Second Circuit affirmed the dismissal of the class claims after an entry of judgment, pursuant to the defendants’ offer of judgment, rendered the class claims moot. The Second Circuit acknowledged that the Supreme Court held in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that an unaccepted offer of judgment does not moot a plaintiff’s claims. “But where judgment has been entered and where the plaintiff’s claims have been satisfied, as they were here when [the plaintiff] negotiated the check, any individual claims are rendered moot.” Continue reading “Second Circuit Moots Class Claims Based on Offer of Judgment”
Parties Present Their Arguments Before The D.C. Circuit in The Consolidated Appeal
The U.S. Court of Appeals for the D.C. Circuit heard oral argument in the consolidated appeal of the FCC’s July 10, 2015 TCPA Declaratory Ruling and Order on Wednesday, October 19th. The panel was composed of Judges Sri Srinivasan, Cornelia T.L. Pillard and Harry T. Edwards. The argument was well attended and lasted nearly three hours – much longer than the forty minutes for which it had been scheduled. The panel’s questions primarily focused on the definition of an ATDS, the identity of the “called party” from whom consent must be obtained, the impracticality of the FCC’s one-call safe harbor, and the methods by which consumers may revoke consent. A small portion of the argument was devoted to healthcare-related messages. Continue reading “Parties Present Their Arguments Before The D.C. Circuit in The Consolidated Appeal”
Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order
On October 13, 2016, counsel for class action plaintiffs (“Plaintiff Petitioners”) in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, filed a notice of supplemental authority with the United States Court of Appeals for the D.C. Circuit, arguing that the court’s recent decision in PHH Corp. v. CFPB, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016), supports their arguments that the FCC’s October 2014 Anda Order (the “Anda Order”) “constitutes an impermissible retroactive legislative or adjudicatory rule” and violates separation of powers principles. Continue reading “Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order”