Category - "Telemarketing"

Second Circuit: TCPA Class Actions Can Proceed in New York Federal Courts

The Second Circuit recently held that Federal Rule of Civil Procedure 23 governs whether TCPA class actions can proceed in New York federal courts, and concluded that a prior Second Circuit ruling to the contrary no longer was good law.  Bank v. Independence Energy Group LLC, No. 13-1746-cv (2d Cir. Dec. 3, 2013).

Previously, in Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008), the Second Circuit had held that state procedural rules governed whether a TCPA action could proceed as a class action in federal court, instead of Rule 23.  Because N.Y. C.P.L.R. § 901(b) bars class actions seeking statutory damages unless the statute at issue expressly authorizes recovery in a class action (which the TCPA does not), the Bonime court ruled that a TCPA plaintiff could not pursue a class action for statutory damages in New York federal courts.  This effectively sounded the death knell for TCPA class actions in New York.

Continue reading “Second Circuit: TCPA Class Actions Can Proceed in New York Federal Courts”

Buyer Beware: When the Financially Challenged Marketing Partner is a Co-Defendant in TCPA Litigation

A recently proposed class action settlement agreement illustrates the potential litigation perils when any established business relies on outsourced, undercapitalized marketing agents who lack either the assets or insurance to adequately defend TCPA class action litigation.  Indeed, the only proposed recovery for the class is an agreement to provide testimony and documentary evidence of the co-defendant’s actual knowledge of the conduct that violated the TCPA, and its alleged authorization of the subject unlawful text messaging.

Continue reading “Buyer Beware: When the Financially Challenged Marketing Partner is a Co-Defendant in TCPA Litigation”

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.

Continue reading “T-Minus 3, 2, 1…”