The Southern District of New York recently granted a motion to dismiss in a putative TCPA class action because plaintiff failed to plausibly allege that the texts at issue constituted telemarketing or contained advertising material, thus requiring plaintiff’s prior express written consent. The decision highlights the importance of pleading the specific content of the communication at issue in a TCPA case, which directly impacts the type of consent that is required. Continue reading “Court Dismisses Case for Failure to Plausibly Allege That Text Messages Constituted Telemarketing”
As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling
Reflecting the nearly universal sense by constituents that call spoofing and other illegal forms of robocalls are annoying and unwelcome, on November 15, a bipartisan team of United States senators, Senators Markey, Thune and Wicker, introduced a bill titled the “Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” also known as the TRACED Act. The bill is designed to provide the FCC and other federal agencies acting in concert with the FCC with additional tools to combat spoofing and other illegal robocalling operations by amending Section 227 of the Communications Act to provide for enhanced civil penalties for violation of TCPA rules. Specifically, the bill would provide the FCC going forward with forfeiture authority to assess civil penalties of up to $10,000 per illegal robocall violation and extend the current FCC statute of limitations to investigate TCPA violations from the current one year to three years. The bill also creates new criminal fines of up to $10,000 per violation that can be trebled if the activity was intentional. The FCC would have 270 days following enactment to develop implementing regulations. The bill does not introduce any changes to the current private right of action provisions of Section 227 of the Act. Continue reading “As the 115th Congress Winds Down, a New Senate Bill Proposes Stiffer Penalties for Illegal Robocalling”
One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise
Last week, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), a court rejected the argument – supported by previous cases – that pharmacy prescription reminder calls categorically come within the TCPA’s statutory emergency purposes exception. This decision creates uncertainty for all pharmacies and may chill their ability to provide important health care notifications to their patients. Continue reading “One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise”
High Court May Upend TCPA Litigation Landscape
TCPA Blog contributor Justin Kay is quoted in a Law360 article entitled “High Court May Upend TCPA Litigation Landscape” addressing the Supreme Court’s decision to grant the defendant’s petition for certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.—a TCPA fax case. Continue reading “High Court May Upend TCPA Litigation Landscape”
Ninth Circuit Declines to Rehear Marks Appeal
As we previously reported, the defendant in Marks v. Crunch San Diego, LLC, No. 14-56834 (9th Cir.) filed a Petition for Rehearing En Banc that asked the Ninth Circuit to revisit its recent decision expanding the definition of “automatic telephone dialing system.” Continue reading “Ninth Circuit Declines to Rehear Marks Appeal”
District Court Denies Class Certification Due to Individualized Issues of Consent
A federal district court recently rejected a plaintiff’s bid at class certification in a TCPA case. See Bais Yaakov of Spring Valley v. ACT, Inc., No. CV 12-40088-TSH, 2018 WL 5281746 (D. Mass. Oct. 24, 2018) (available here). The decision provides a useful illustration of how individualized issues of consent may defeat a plaintiff’s attempt to show that common questions “predominate,” as required by Rule 23(b)(3). Continue reading “District Court Denies Class Certification Due to Individualized Issues of Consent”
FCC Receives Comments on Definition of ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC
We previously described the Ninth Circuit’s decision in Marks v. Crunch San Diego which, contrary to the D.C. Circuit’s ACA International ruling in March of this year, treated the definition of an ATDS expansively, holding that that statutory definition of an ATDS includes equipment that has the capacity (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator. We explained how the Ninth Circuit’s decision represented an improper interpretation of the ATDS statutory language. And we previously reported how the FCC sought expedited public comment on the Marks decision. Continue reading “FCC Receives Comments on Definition of ATDS Following the Ninth Circuit’s Decision in Marks v. Crunch San Diego, LLC”
The TCPA in 2018: There and Back Again
As a follow-up to our initial reminder to mark your calendars for our half-day conference on November 14, 2018, in Washington, D.C., we are pleased to share the agenda.
Distinguished panelists hailing from government, retail, finance, health, and technology will join Drinker Biddle attorneys for an afternoon of discussion about the past, present and future of the TCPA and related litigation and enforcement.
We hope to see you there!
District Court Applies TCPA’s Plain Language to Grant Defendants Summary Judgment
Recently, the Eastern District of Michigan granted a motion for summary judgment in Gary v. Trueblue, Inc., No. 17-10544, 2018 U.S. Dist. LEXIS 175021 (E.D. Mich. Oct. 11, 2018), after finding that a plaintiff failed to show that defendants’ telephone dialing system qualified as an ATDS under the statute’s plain language. This decision adds to the growing list of cases applying the plain language of the statute in the wake of ACA International. Continue reading “District Court Applies TCPA’s Plain Language to Grant Defendants Summary Judgment”
Two New Putative TCPA Class Actions Filed Against Political Campaigns
On Tuesday last week, we noted that as we approach the November 2018 midterm elections, we expect to see an uptick in the number of TCPA lawsuits filed against campaigns, candidates, and committees. On cue, on Friday two new such putative class action TCPA lawsuits were filed: Norton v. 1863 PAC, Ltd., No. 18cv173 (N.D. W. Va. Oct. 19, 2018) and Syed v. Beto for Texas, No. 18cv2791 (N.D. Tex. Oct. 19, 2018). Continue reading “Two New Putative TCPA Class Actions Filed Against Political Campaigns”