On December 2nd, the National Association of Chain Drug Stores, Inc. (“NACDS”) submitted an amicus brief in support of member organization and petitioner Rite Aid in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). We reported earlier that Rite Aid filed its opening brief focusing on the healthcare-related portions of the Order on November 25th, the same day the joint petitioners filed their opening brief. The NACDS notes that it also supports the joint petitioners’ arguments related to reassigned numbers, automatic telephone dialing systems, and revocation of consent but submitted a separate amicus brief to address the impact of the Order on critical patient healthcare notifications. Brief at 2 n.1.
Who Bears Liability For That Call Or Fax? Courts Continue To Wrestle With Direct And Vicarious Liability
Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?
Rite Aid Files Opening Brief in Consolidated Appeal of FCC’s TCPA Order
On November 25th, petitioner Rite Aid Hdqrtrs. Corp. (“Rite Aid”) filed its opening brief in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). Although Rite Aid supports the opening brief filed by the joint petitioners on the same day, it obtained permission to file a short separate brief focusing on the healthcare-related portions of the Order. (Whereas the joint petitioners’ opening brief was limited to 14,000 words, Rite Aid’s opening brief was limited to 2,500 words.)
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Ninth Circuit Affirms Grant of Summary Judgment to PayPal
In Roberts v. PayPal, Inc., No. 13-16304, 2015 U.S. App. LEXIS 18836 (9th Cir. Oct. 29, 2015) the Ninth Circuit recently upheld a grant of summary judgment to PayPal in Roberts v. PayPal, Inc., No. 12-0622, 2013 U.S. Dist. LEXIS 76319 (N.D. Cal. May 30, 2013).
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Joint Petitioners File Initial Brief in Consolidated Appeal of FCC’s TCPA Order
On November 25th, joint petitioners ACA International, Sirius XM, PACE, salesforce.com, ExactTarget, Consumer Bankers Association, U.S. Chamber of Commerce, Vibes Media, and Portfolio Recovery Associates (“Petitioners”), filed their opening brief in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir. Nov. 25, 2015). Rite Aid filed a separate opening brief that we will address in a subsequent post
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National Grid’s Limited Waiver of Caller Identification Requirements Granted by the FCC
The FCC continues to dispose of pending petitions or requests for waiver of its TCPA rules. One slightly unusual request was the petition filed last February by National Grid USA, Inc. (“National Grid”) requesting a limited waiver of section 64.1200(b)(1) of the Commission’s rules to allow it to satisfy its TCPA caller identification requirements by providing a “doing business as” (“DBA”) name it had registered with state utility commissions when placing prerecorded voice calls rather than its legal name. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Declaratory Ruling and/or Waiver submitted by National Grid USA, Inc., CG Docket No. 02-278, filed Feb. 18, 2014 (“National Grid Petition”).
Federal Court Grants Defendant’s Motion For Partial Summary Judgment
The United States District Court for the Middle District of Florida (J. James D. Whittemore) recently granted LTD Financial Services, L.P.’s motion for partial summary judgment in a TCPA case involving pre-recorded calls allegedly placed to plaintiff’s cellular telephone. See Estrella v. LTD Financial Services, LP, No. 14-2624, 2015 U.S. Dist. LEXIS 148249 (M.D. Fla. Nov. 2, 2015). As we have previously covered, district courts across the country have demonstrated a willingness to dispose of cases where the records fail to establish that the calls or text messages at issue were sent using an automatic telephone dialing system (“ATDS”).
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Supreme Court Hears Oral Argument in Tyson Foods, Inc. v. Bouaphakeo
On Tuesday the Supreme Court heard oral argument in Tyson Foods, Inc. v. Bouaphakeo, which concerns (among other things) whether courts can certify classes that are defined in a way that would include people who do not have Article III standing. For those who were unable to attend the argument, a transcription of the argument is available here.
Supreme Court Hears Oral Argument in Spokeo, Inc. v. Robins
Earlier this week the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, which concerns whether Congress can confer Article III standing on a plaintiff who alleges a violation of a statute (i.e., an injury in law) but no resulting harm (i.e., an injury in fact). For those who were unable to attend the argument, recordings and transcriptions of the argument are available here and here.
Distinguished In-House Counsel to Join TCPA Blog Contributors for CLEs in San Francisco and Los Angeles
Please join Drinker Biddle’s TCPA Team and special in-house counsel guests for a CLE program titled “Braving the Minefield of the Telephone Consumer Protection Act: hot Topics in Litigation and Compliance” that will address recent developments and successful defense strategies related to the TCPA.
San Francisco
Tuesday, November 10
The Ritz-Carlton
600 Stockton Street
Los Angeles
Wednesday, November 11
Beverly Wilshire
500 Wilshire Boulevard
Special Guests
Alycia Horn, Assistant General Counsel, Comcast Cable
Melinda McAfee, Vice President & Associate General Counsel, Abercrombie & Fitch
Allison Marrazzo, Litigation, Patent and Technology Counsel, eBay Inc.