Following the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. Mar. 31, 2017), we explained on this blog and elsewhere that the issue of whether a fax advertisement is solicited or not would come back into play in many cases and make it much harder for the plaintiffs’ bar to certify a class of recipients. And that is precisely what occurred in a recent decision from the Northern District of Illinois in Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-cv-513 (N.D. Ill. Nov. 3, 2017): the court granted defendants’ motion to deny class certification. In the process, the court also slammed the door on several arguments proffered by plaintiffs’ counsel in an effort to evade the impact of Bais Yaakov.
Missouri District Court Rules that App Developer Is Not Subject to Personal Jurisdiction Based on App Users’ Contacts with the Forum
A recent ruling from the Eastern District of Missouri provides encouraging news for app developers who may be sued under the TCPA for messages sent by users of their app. The court declined to exercise personal jurisdiction over the defendant, the photo sharing app developer Everalbum, Inc., because the text messages sent to plaintiffs in the forum state were sent by users of the app, and Everalbum itself directed no messages into the forum. See Figueroa v. Everalbum, Inc., No. 17-1393, 2017 WL 4574797 (E.D. Mo. Oct. 12, 2017). The decision is a favorable one for software companies whose users may initiate SMS communications with persons throughout the country, thus implicating the TCPA.
Senate to Hold Hearing on Impact of TCPA Litigation on Small Businesses
On Wednesday the Senate Judiciary Committee will hold a hearing that will include testimony about the TCPA’s abuse by plaintiffs and effect on small businesses. Continue reading “Senate to Hold Hearing on Impact of TCPA Litigation on Small Businesses”
District Courts Debate Whether Providing a Phone Number Establishes Consent
Multiple district courts have recently examined whether, and in what circumstances, providing one’s phone number suffices to establish consent to be called under the TCPA. The issue is complicated, turning on whether prior express consent must be in writing, a determination which, in turn, requires examination of whether the call in question constitutes “telemarketing” or “advertising.”
Continue reading “District Courts Debate Whether Providing a Phone Number Establishes Consent”
Second Circuit Doubles Down On Decision Prohibiting Unilateral Revocation of Consent From Bilateral Contract
We reported in June on a Second Circuit decision holding that a consumer cannot unilaterally revoke consent that she provided in a bilateral contract. “It is black letter law,” the court explained, “that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty,” and that “consent to another’s actions can ‘become irrevocable’ when it is provided in a legally binding agreement.” As a result, the TCPA “does not permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.”
District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising
As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required? Continue reading “District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising”
Third Circuit Reverses Denial of Class Certification, Remands for Development of Record Regarding Ascertainability
The Third Circuit recently vacated a trial court’s decision that members of a putative class were not readily ascertainable by reference to objective criteria. City Select Auto Sales Inc. v. BMW Bank of North America Inc., 867 F.3d 434 (3d Cir. 2017). Although it did not find that a class was in fact ascertainable, it held that the trial court misapplied the ascertainability standard and remanded for further proceedings. Id. at 443. Continue reading “Third Circuit Reverses Denial of Class Certification, Remands for Development of Record Regarding Ascertainability”
Court Compels Arbitration of TCPA Claims Due to Broad Arbitration Agreement with Survival Clause
A recent decision from the Northern District of Ohio highlights the importance of having a carefully drafted arbitration agreement in callers’ customer-facing contracts. See Treinish v. BorrowersFirst, Inc., No. 17-1371, 2017 U.S. Dist. LEXIS 145772 (N.D. Ohio Sept. 8, 2017).
The Plaintiff in Treinish had borrowed money from the Defendant. Id. at *1. Their contract contained two notable provisions: a provision that agreed to resolve disputes in arbitration and a provision that consented to receive automated calls from the Defendant and related entities on her cellphone. Id. at *1-2. Continue reading “Court Compels Arbitration of TCPA Claims Due to Broad Arbitration Agreement with Survival Clause”
FCC Issues Public Notice Regarding Requested TCPA Exemptions for Credit Unions
On October 6, 2017, the FCC issued a Public Notice that seeks comment on a Petition that was recently filed by the Credit Union National Association. Specifically, the Public Notice seeks comment on whether it should “adopt an established business relationship exemption from the [TCPA’s] prior-express-consent requirement for informational autodialed or artificial- or prerecorded-voice calls (including text messages) made by or on behalf of credit unions to their members’ wireless phone numbers,” or, alternatively, whether it should “exercise its statutory authority to exempt from the TCPA’s prior-express-consent requirement credit union informational calls made to its members’ wireless phone numbers that are in fact free to the called party.” Continue reading “FCC Issues Public Notice Regarding Requested TCPA Exemptions for Credit Unions”
U.S. Senate Votes for More Pai
On Tuesday, October 3, 2017, the Senate confirmed Chairman Ajit Pai to a second term at the FCC, enabling him to potentially stay on as chairman until the end of 2021. Originally appointed by President Obama in 2012, Chairman Pai was a member of the Republican minority on the Commission until early 2017, when former Chairman Tom Wheeler resigned and President Trump elevated Pai to the chairmanship. While Pai’s term technically ended in 2016, FCC rules allowed him to keep serving until the end of 2017 while the Senate considered his re-nomination. Continue reading “U.S. Senate Votes for More Pai”