Friday afternoons typically see a high volume of notices of new TCPA complaints. Those complaints usually offer little variation: while the names of the parties and counsel sometimes change, they all typically name businesses as defendants and challenge their compliance with the TCPA. Friday, May 13th was no different, except in one key respect: one of those new complaints names Attorney General Loretta Lynch as the defendant and challenges the TCPA itself. Continue reading “The TCPA As Great Uniter? Democrats and Tea Party Republicans Join Forces, File Suit Seeking To Have The TCPA Declared Unconstitutional”
Freedom of Contract Appears Alive and Well in the Third Circuit
Two federal courts in the Third Circuit recently compelled individual arbitration in TCPA actions. See Raynor v. Verizon Wireless, No. 15-5914, 2016 U.S. Dist. LEXIS 54678 (D.N.J. Apr. 25, 2016); Herndon v. Green Tree Serv. LLC, No. 15-1202, 2016 U.S. Dist. LEXIS 53937 (M.D. Pa. Apr. 22, 2016). Issued just a few days apart in cases against a telecommunications provider and a mortgage broker, these decisions serve as a helpful reminder to businesses to consider including arbitration clauses in their consumer contracts—and to explore their applicability when facing TCPA litigation. Continue reading “Freedom of Contract Appears Alive and Well in the Third Circuit”
Trump Campaign Faces Second, Similar Suit in Same Court
Following on the heels of Plaintiff Joshua Thorne’s TCPA suit, the Donald J. Trump campaign was hit with a second TCPA lawsuit in as many days. See Roberts v. Donald J. Trump For President, Inc., No. 16-4676 (N.D. Ill. Apr. 26, 2016). The Roberts Complaint concerns the same message (“Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.”) and has been assigned to the same judge (Judge John Z. Lee) as the Thorne Complaint. The Roberts Complaint, however, differs in a couple of key respects. Continue reading “Trump Campaign Faces Second, Similar Suit in Same Court”
Trump Campaign Sued In Federal Court in Illinois
Earlier this week, Illinois resident Joshua Thorne filed a purported class action against Donald J. Trump for President, Inc., in the Northern District of Illinois. See Thorne v. Donald J. Trump For President, Inc., No. 16-4603 (N.D. Ill. Apr. 25, 2016). The suit seeks statutory damages, attorneys’ fees, and injunctive relief for alleged TCPA violations. Thorne alleges that although he never provided his phone number to the Trump campaign, he recently received a text message from 88022 (an SMS short code leased by the Trump campaign) stating “Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.” Continue reading “Trump Campaign Sued In Federal Court in Illinois”
Currently Pending FCC Petitions in TCPA Matters
With the TCPA dockets remaining active going into 2016, we decided to put together a list of notable petitions pending at the FCC. The following list provides details on most petitions that the FCC has yet to rule on, including links to the petition and, where applicable, the public notice, some background on the issues implicated by the petitions, and details on important dates associated with the proceeding. Continue reading “Currently Pending FCC Petitions in TCPA Matters”
Ninth Circuit: Conditional Tender Does Not Moot Putative Class Action
In the wake of the Supreme Court’s decision in Campbell-Ewald v. Gomez, the Ninth Circuit has held that an offer tendering complete relief, conditioned on the dismissal of a putative class action, is insufficient to moot the action for purposes of Article III jurisdiction.
In Chen v. Allstate, No. 13-16816 (9th Cir. April 12, 2016), the defendant deposited in escrow an amount exceeding the value of the plaintiff’s individual TCPA claim. The escrow instructions conditioned the payment of the funds on the entry of an order from the district court dismissing the action as moot. The defendant asked the Ninth Circuit to supplement the record on its pending appeal, to hold that the tender had mooted the plaintiff’s claims under Article III, and to direct the district court to dismiss the action. Continue reading “Ninth Circuit: Conditional Tender Does Not Moot Putative Class Action”
What’s My Line? The FCC Seeks Comment on a Petition Seeking a Definition of “Residential Line”
On March 31, 2016, the FCC released a public notice (“Public Notice”) seeking comment on a petition for declaratory ruling filed by Todd C. Bank (“Petition”), an attorney who maintains a home-based law practice. As Bank’s Petition notes, the TCPA includes a number of restrictions that apply to residential lines. For example, among them, the TCPA provides that “[i]t shall be unlawful for any person . . . to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party . . .” See 47 U.S.C. § 227(b)(1)(B). In his Petition, Bank argues that these calling restrictions apply to any line registered as a residential telephone line, including those that are in fact used for business purposes by the subscriber. The resolution of this question could have wide-reaching implications for telemarketers, who might as a result have another screen to apply to potential calls as to whether a number held out as a business line is actually a residential line as classified by the telephone service provider. Continue reading “What’s My Line? The FCC Seeks Comment on a Petition Seeking a Definition of “Residential Line””
Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual
Since our December 8, 2015 blog post regarding the scope of vicarious liability, courts have continued to wrestle with the scope of vicarious liability under the TCPA and its ramifications with respect to class certification. A recent decision denying class certification based on lack of ascertainability of the class and commonality issues from the Southern District of Ohio in Barrett v. ADT Corp., No. 15-cv-1348, 2016 U.S. Dist. LEXIS 28767 (S.D. Ohio March 7, 2016), illustrates why class certification is an uphill battle in this context for plaintiffs in TCPA litigation. Continue reading “Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual”
Death And Taxes Are Certain; TCPA Claims Are Not
In Hannabury v. Hilton Grand Vacation Co., LLC, No. 14-cv-6126, 2016 WL 1181789 (W.D.N.Y. Mar. 25, 2016), the District Court for the Western District of New York held that a named plaintiff’s TCPA claims do not survive his death.
Plaintiff had filed a putative class action against Hilton for placing calls to his cell phone in an attempt to sell interests in timeshare properties, even though he alleged that his phone number was listed on the national Do Not Call Registry. The named plaintiff, however, passed away before moving to certify a class. His estate brought a motion to substitute itself as the named plaintiff. Continue reading “Death And Taxes Are Certain; TCPA Claims Are Not”
Seventh Circuit Affirms District Court Ruling That TCPA Fax Regulations Are Not Strict Liability
On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793, holding that agency rules apply to determine whether a fax is sent “on behalf of” a principal and affirming the district court’s decision that the defendant was liable only for those faxes he authorized.
As previously reported, the lead issue on appeal in this fax-based TCPA case involved whether a defendant is liable for all faxes sent by the fax broadcaster or another third party, or only for those faxes the fax broadcaster or third party was authorized by the defendant to send (in this case, only within a 20-mile radius of the defendant’s businesses). Continue reading “Seventh Circuit Affirms District Court Ruling That TCPA Fax Regulations Are Not Strict Liability”