As previously covered in other TCPA blog posts, the FCC maintains a range of TCPA rules addressing certain key elements of telemarketing and even non-telemarketing call activities that can implicate routine interactions between companies and their customers or prospective customers. The proper scope and interpretation of some of these rules continue to be the subject of newly filed petitions for clarification, declaratory ruling or even requests for outright waiver of certain FCC rules. We highlight here several of the more recent additions to the FCC’s already large compliment of pending TCPA petitions.
California Federal Court Upholds Pre-Certification Discovery of Defendant’s “Outbound Dial List” in TCPA Class Action
A California federal district court recently ordered a debt collector to produce an “outbound dial list” that identified all telephone numbers it had called using an ATDS over a one-year period. See Webb v. Healthcare Revenue Recovery Grp. LLC, No. C. 13-00737 RS, 2014 WL 325132 (N.D. Cal. Jan. 29, 2014). The ruling highlights the potential conflict between the discovery objectives of putative class counsel on the one hand, and the privacy rights of putative class members on the other.
Court Holds that Providing Cellphone Number for an Online Purchase Constitutes “Prior Express Consent” Under TCPA
A federal district court in California recently ruled that a consumer who voluntarily provided a cellphone number in order to complete an online purchase gave “prior express consent” to receive a text message from the business’s vendors under the TCPA. See Baird v. Sabre, Inc., No. CV 13-999 SVW, 2014 WL 320205 (C.D. Cal. Jan. 28, 2014).
Court Finds That Vendor of VoIP Service That Circumvents Caller Identification is Not Secondarily Liable for Caller’s TCPA Violations
A federal court recently held that a vendor of a VoIP service that allows callers to circumvent caller identification is not secondarily liable for the alleged TCPA violations of the caller that uses that service. See Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014).
D.C. Circuit Dish Network Decision Fails to Clear the Muddied TCPA Waters of a Seller’s Vicarious Liability
On January 22, 2014, the United States Court of Appeals for the District of Columbia Circuit dismissed Dish Network LLC’s petition for review of a 2013 Declaratory Ruling (“Declaratory Ruling”)[1] by the Federal Communications Commission (FCC), which clarified whether a seller may be held vicariously liable under federal common law principles of agency for violations of Sections 227(b) or 227(c) of the TCPA.
Two California Federal Courts Send Putative TCPA Class Actions to Arbitration
Two federal district courts in California recently hit the brakes on putative TCPA class actions, granting the defendants’ motions to compel arbitration and informing the plaintiffs that, by signing contracts containing arbitration clauses, they relinquished any right to pursue TCPA claims through a class action.
In Mendoza v. Ad Astra Recovery Services, Inc., No. 2:13-cv-06922-CAS(JCGx), 2014 WL 47777 (Jan. 6, 2014 C.D. Cal.), plaintiff Miguel Mendoza sued an agent of a payday lending firm that contacted him regarding repayment of a loan. Mendoza, who had obtained a $255 payday loan from non-party Speedy Cash, alleged that he began receiving calls from defendant Ad Astra on his cell phone after he failed to repay the debt. When Mendoza did not answer these calls, Ad Astra allegedly left “voicemail messages using a pre-recorded or artificial voice.” He contended that such messages violated the TCPA. See 47 U.S.C. § 227(b)(1)(A).
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JPML Centralizes TCPA Class Actions in the Northern District of West Virginia
The Judicial Panel on Multidistrict Litigation (JPML) recently centralized four putative class actions asserting that the defendants (Monitronics International, Inc. and its agents) violated the TCPA by making telemarketing calls to numbers on the national Do Not Call Registry or to persons from whom they did not have consent. See In Re Monitronics International, Inc., Telephone Consumer Protection Act Litigation, MDL No. 2493 (Dec. 16, 2013). A copy of the JPML’s decision is available here.
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Plaintiff Withdraws Appeal Before Ninth Circuit Can Review Order Dismissing TCPA Class Action
As we previously reported, Plaintiff David Emanuel recently took an appeal from the Central District of California’s dismissal of a class action asserting that the Los Angeles Lakers violated the TCPA by sending text messages without the recipients’ consent. The trial court dismissed the case with prejudice after finding that the plaintiff had consented to the text message by sending the Lakers a text message of his own, and had parroted the definition of an ATDS rather than pleaded any facts tending to show that the Lakers had actually used one. See Emanuel v. L.A. Lakers, Inc., 12-9936, 2013 WL 1719035 (C.D. Ca. Apr. 18, 2013). The plaintiff then took an appeal in which Twitter and Path filed a notable amicus brief that railed against the veritable cottage industry of plaintiffs’ lawyers that is transforming “a statute intended to curb vexatious telemarketing” into a “vehicle for vexatious lawsuits.”
On New Year’s Eve, the plaintiff filed short “Notices of Settlement” informing both the trial court and Ninth Circuit that “this case has been settled in its entirety, on an individual basis” and that “the parties anticipate filing a Joint Motion for Dismissal with prejudice as to the named plaintiff and without prejudice as to the putative class within 45 days.” As of today, no such Motion appears on the Ninth Circuit or Central District of California dockets and (not surprisingly) the terms of the individual settlement have not been disclosed. So while the Central District of California’s decision still stands, a Ninth Circuit decision adopting its reasoning will unfortunately have to wait for another day.
Hobbs Act Issues Abound in TCPA Cases, Some Drawing FCC Reaction
Appropriate application of the Administrative Orders Review Act (aka the Hobbs Act) can become a contentious issue in some TCPA cases, and in this post we highlight a few recent examples. The Hobbs Act provides exclusive jurisdiction to the federal court of appeals to determine the validity of all final orders of the Federal Communications Commission (FCC) and also specifies that any party aggrieved by a final order of an agency such as the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry. Thus, while plaintiffs in TCPA cases may allege that aspects of the TCPA laws or FCC rules have been violated, they are not free to collaterally attack the substance of FCC rules that they have not timely challenged. The FCC is understandably concerned when plaintiffs mount an indirect challenge of the agency’s rules, in some cases so much so that the agency participates in a court proceeding.
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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.
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