Category Archives: TCPA

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The U.S. Supreme Court Limits TCPA Liability By Narrowly Interpreting ATDS

Photo of Lisa Yun PruittPhoto of Shannon PetersenBy Lisa Yun Pruitt and Shannon Petersen on Posted in TCPA
On April 1, 2021, the U.S. Supreme Court in the class action case of Facebook, Inc. v. Duguid, No. 19-511, resolved a circuit court split on the meaning of automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) by unanimously reversing the Ninth Circuit’s broad definition and narrowly interpreting ATDS.  Bringing much … Continue Reading

Strengthening the TCPA’s Sovereign Immunity Shield—Fourth Circuit Rules Federal Employees Are Not Liable for Government-Mandated Robocalls

Photo of David PoellBy David Poell on Posted in TCPA
In a resounding victory for public-private partnerships, the Fourth Circuit’s decision in Cunningham v. Lester, et al., No. 20-1086, — F.3d —- (4th Cir. Mar. 4, 2021) has affirmed federal employees’ immunity from the Telephone Consumer Protection Act (“TCPA”) when acting in furtherance of a government mandate.  The TCPA imposes strict statutory penalties for unsolicited … Continue Reading

The Sixth Circuit Broadly Defines ATDS, Widening The Split Among Circuits Before The Supreme Court Rules Next Year

Photo of Lisa Yun PruittPhoto of Shannon PetersenBy Lisa Yun Pruitt and Shannon Petersen on Posted in Consumer, Federal Class Action, Supreme Court, TCPA
On July 29, 2020, the Sixth Circuit joined the Second and the Ninth Circuits in expansively defining Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043 (6th Cir. July 29, 2020), the Sixth Circuit held that “devices that dial from a stored … Continue Reading

U.S. Supreme Court to Address Circuit Split on Definition of ATDS Under The TCPA

Photo of Lisa Yun PruittPhoto of Shannon PetersenBy Lisa Yun Pruitt and Shannon Petersen on Posted in Consumer, Federal Class Action, TCPA, U.S. Supreme Court
On July 9, 2020, the U.S. Supreme Court granted certiorari in Facebook, Inc. v. Duguid, to resolve a split in authority on the meaning of Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  In TCPA class actions, millions of dollars of potential liability often turn on this one issue, and different … Continue Reading

Death by a Thousand Cuts? Supreme Court Finds Government Debt Exception to TCPA Unconstitutional, Opening Door to Similar Attacks on FCC Regulations

Photo of Lisa Yun PruittPhoto of Shannon PetersenBy Lisa Yun Pruitt and Shannon Petersen on Posted in TCPA
On July 6, 2020, the United States Supreme Court affirmed a ruling by the Court of Appeals for the Fourth Circuit, which found that an exception allowing government debt-related robocalls to cell phones is unconstitutional and must be severed from the rest of the Telephone Consumer Protection Act of 1991 (“TCPA”).  Barr v. Am. Assn. … Continue Reading

The Second Circuit Invites All The Party Plaintiffs To The Disco With Broad Definition Of ATDS Under The TCPA

Photo of Lisa Yun PruittPhoto of Shannon PetersenBy Lisa Yun Pruitt and Shannon Petersen on Posted in Consumer, Federal Class Action, TCPA
In Duran v. LaBoom Disco, Inc., No. 19-600-cv (2d Cir. Apr. 7, 2020), the Second Circuit joined the Ninth Circuit in expansively defining Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  The Second Circuit held, like the Ninth Circuit before, that ATDS includes automated texts/calls to consumers from stored lists, while … Continue Reading

FCC Declares Certain Calls/Texts Regarding COVID-19 Are Exempt From The TCPA

Photo of David PoellPhoto of Shannon PetersenBy David Poell and Shannon Petersen on Posted in Consumer, Federal Class Action, TCPA
The Telephone Consumer Protection Act (“TCPA”) generally prohibits automated calls, including text messages, to cell phones without sufficient prior express consent, and imposes a statutory penalty of $500 to $1,500 per call/text in violation.  Calls that serve an “emergency purpose” are completely exempt from the TCPA.  The FCC’s rules define “emergency purpose” to mean “calls … Continue Reading

Seventh Circuit Adopts Narrow Definition of Autodialer Under The TCPA

Photo of David PoellPhoto of Shannon PetersenBy David Poell and Shannon Petersen on Posted in Consumer, Federal Class Action, TCPA
The Seventh Circuit has recently joined the Second, Third, Sixth and Eleventh Circuits in adopting a narrow interpretation of Automatic Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act (“TCPA”), one that excludes equipment that dials numbers from a customer database.  See Gadelhak v. AT&T Services, Inc., No. 19-1738, — F.3d —-, 2020 WL … Continue Reading

The Sixth Circuit Limits the Meaning of ATDS Under the TCPA

Photo of Shannon PetersenPhoto of Lisa Yun PruittBy Shannon Petersen and Lisa Yun Pruitt on Posted in Consumer, Federal Class Action, TCPA
Recently, the Sixth Circuit in Gary v. Trueblue, Inc., No. 18-2281, 2019 U.S. App. LEXIS 26959 (6th Cir. Sep. 5, 2019), weighed in on the meaning of Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  The TCPA generally prohibits calls and text messages to cell phones using an ATDS without prior … Continue Reading

Supreme Court Punts On Whether FCC’s Interpretation of the TCPA Binds Federal Courts

Photo of Sieun LeePhoto of David PoellPhoto of Paul WernerPhoto of Shannon PetersenBy Sieun Lee, David Poell, Paul Werner and Shannon Petersen on Posted in Consumer, Federal Class Action, TCPA
At the end of the Supreme Court’s most recent term, the Court released its long-awaited ruling in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (June 20, 2019)—a case that could have carried far-reaching ramifications for Telephone Consumer Protection Act (“TCPA”) litigation nationwide. The Supreme Court granted review to consider … Continue Reading

One “Chirp, Buzz, Or Blink” Is Not Enough To Sue Under The TCPA

Photo of Lisa Yun PruittPhoto of David PoellPhoto of Paul WernerPhoto of Shannon PetersenBy Lisa Yun Pruitt, David Poell, Paul Werner and Shannon Petersen on Posted in Consumer, Federal Class Action, TCPA
A recent decision by the Eleventh Circuit will make it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA).  In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), the Eleventh Circuit ruled that a single text message did … Continue Reading

Supreme Court Poised To Alter TCPA Landscape With Review Of Key Term “Advertisement”

Photo of Paul WernerPhoto of David PoellBy Paul Werner and David Poell on Posted in TCPA
On Tuesday, the Supreme Court decided to review a case that potentially carries far reaching ramifications for litigation under the Telephone Consumer Protection Act (“TCPA”), which places restrictions on phone and fax solicitations and imposes serious penalties for violations. See 47 U.S.C. § 227, et seq. By granting certiorari in PDR Network, LLC v. Carlton & … Continue Reading

Rikki, Don’t Autodial That Number! – Ninth Circuit Doesn’t Want You To Call Nobody Else (in violation of the TCPA)

Photo of David PoellPhoto of Lisa Yun PruittPhoto of Shannon PetersenBy David Poell, Lisa Yun Pruitt and Shannon Petersen on Posted in TCPA
Class action plaintiffs’ attorneys may argue that a recent ruling by the Ninth Circuit expands the scope of liability under the Telephone Consumer Protection Act (“TCPA”) to include calls or text messages sent on all modern telephone equipment, including personal smartphones. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. Sept. 20, 2018).… Continue Reading

5 TCPA Class Action Trends to Watch in 2018 – Legislation, Administrative Law & Litigation

Photo of Paul WernerPhoto of David PoellBy Paul Werner and David Poell on Posted in Class Certification, Federal Class Action, TCPA
1. Have the GOP’s Hopes for Enacting the Fairness in Class Action Litigation Act Been Dashed? – Passed in March 2017 by the U.S. House of Representatives, the Fairness in Class Action Litigation Act of 2017, H.R. 985, has stalled in the Senate. Among other things, the House bill would dictate the method by which … Continue Reading

You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls

Photo of Paul WernerPhoto of David PoellBy Paul Werner and David Poell on Posted in TCPA
As the Rolling Stones famously sing, “You can’t always get what you want.” And in the ever treacherous world of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., the Second Circuit has ruled that means a party to contract cannot unilaterally revoke consent to receive automated calls.… Continue Reading

Enough is Enough: Court Dismisses TCPA Class Action Against A Health Plan That Placed Reminder Calls To Its Members That They Should Consider Their Options During The Annual Open Enrollment Period

Photo of Jay RamseyBy Jay Ramsey on Posted in Health/Pharmaceuticals, TCPA
Plaintiffs across the country have continued to file class actions against companies of all stripe for violation of the Telephone Consumer Protection Act (“TCPA”), often for communications far afield from the classic “telemarketing” calls that the TCPA was meant to prevent.  Recently, a spate of class actions have been filed against health care providers and … Continue Reading

Mooting Class Actions by Offer of Judgment – Episode 2: The Ninth Circuit Strikes Back

Photo of David PoellPhoto of Shannon PetersenBy David Poell and Shannon Petersen on Posted in Consumer, Federal Class Action, Settlements, TCPA
In Campbell-Ewald v. Gomez, 136 S. Ct. 663 (Jan. 20, 2016), the Supreme Court resolved a split among courts and held that an unaccepted settlement offer of complete individual relief does not moot the plaintiff’s lawsuit.  However, the Court expressly left open the question of “whether the result would be different if a defendant deposits … Continue Reading

Mooting Plaintiff’s Class Action Even After Plaintiff Refuses An Offer Of Judgment

Photo of Eric DiIulioPhoto of Shannon PetersenBy Eric DiIulio and Shannon Petersen on Posted in Consumer, Federal Class Action, Settlements, TCPA
For years, litigants have battled over whether a defendant’s offer of judgment, which completely satisfies the plaintiff’s individual claim, can moot a class action. In Campbell-Ewald v. Gomez, 136 S. Ct. 663 (2016), the U.S. Supreme Court recently held that no case is mooted when a plaintiff refuses to accept an offer of judgment.  The … Continue Reading

Not Taking “Yes” For An Answer: U.S. Supreme Court Rules That Unaccepted Offer Of Complete Individual Relief Does Not Moot Plaintiff’s Individual Or Class Action Claim

Photo of David PoellPhoto of Shannon PetersenPhoto of David CannonBy David Poell, Shannon Petersen and David Cannon on Posted in Consumer, Federal Class Action, Settlements, Supreme Court, TCPA, U.S. Supreme Court
On January 20, 2016, in a highly anticipated decision (see October 27, 2015 blog) that will have implications for class action practice nationwide, the U.S. Supreme Court ruled that an unaccepted offer of judgment sufficient to completely satisfy an individual claim does not moot that claim or any class claim. The Supreme Court’s decision partially … Continue Reading

Supreme Court Takes On Class Actions, Again

Photo of David CannonBy David Cannon on Posted in Class Certification, Consumer, Federal Class Action, Settlements, TCPA
Over recent years the United States Supreme Court has waded deep into the waters of class certification, significantly altering the playing field for class action claims.  As the Supreme Court continues its 2015 session, it takes on issues that may continue to alter the landscape, including (i) whether settlement with a class representative can be … Continue Reading

In Sprint Victory, Judge Posner and the Seventh Circuit Hold That Arbitration Is Required in a TCPA Class Action Even Though the Alleged Violation Occurred After the Termination of the Contract

Photo of Jay RamseyBy Jay Ramsey on Posted in Arbitration, Federal Class Action, TCPA
On May 11, 2015, in an opinion written by Judge Posner, the Seventh Circuit reversed an order denying Sprint’s motion to compel arbitration in a class action allegation violations of the Telephone Consumer Protection Act (“TCPA”).  The thrust of the dispute was not whether there was a valid agreement to arbitrate between Sprint and the … Continue Reading

Not So Small After All: CallFire Uses Common Carrier Defense to Defeat Rinky Dink TCPA Class Action Case

By Sheppard Mullin on Posted in Federal Class Action, TCPA
Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA defendants to avoid liability for pre-recorded calls through the common carrier defense.… Continue Reading

Hold the Phone: Judge Holds Dish Network on the Line for Tens of Millions of Calls, but Leaves Silver Lining for TCPA Defendants

By Sheppard Mullin on Posted in Consumer, State Class Action, TCPA
On December 12, 2014, Judge Sue E. Myerscough issued an epic 238-page order granting in part and denying in part cross summary judgment motions filed in United States of America, et al. v. Dish Network, L.L.C. (“Dish Network”). United States v. Dish Network, L.L.C., No. 09-3073, 2014 WL 7013223 (C.D. Ill. Dec. 12, 2014). Despite … Continue Reading
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