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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 & Harris Chiropractic, Inc., No. 17-1705, the Court is set to resolve the question whether the Hobbs Act requires district courts to accept the FCC’s interpretation of the TCPA’s key statutory term “advertisement.”…
Continue Reading Supreme Court Poised To Alter TCPA Landscape With Review Of Key Term “Advertisement”

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 Rikki, Don’t Autodial That Number! – Ninth Circuit Doesn’t Want You To Call Nobody Else (in violation of the 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 to calculate attorneys’ fees in a class action and significantly limit recoverable attorneys’ fees to a “reasonable percentage of (1) any payments received by class members; and (2) the value of any equitable relief.” (H.R. 985, § 103) The bill also installs a stringent “ascertainability” rule that would likely result in more denials of class certification. On March 13, 2017, the House bill was sent to the Senate Judiciary Committee, but the Committee has not taken any further actions to advance the bill. In the current political climate, there may be a tailwind for this legislative effort in 2018.

2. The FCC’s Progress and Speed in Resolving the Backlog of TCPA Petitions – Several petitions for declaratory ruling were filed with the FCC in late 2016 and 2017 requesting clarification on issues relating to the meaning of “prior express consent” under the TCPA. After soliciting and receiving comments from the public, those petitions are ripe for decision by the FCC. See In the Matter of Credit Union Nat’l Ass’n Petition for Declaratory Ruling, Dkt. No. 02-278 (filed Sept. 29, 2017) (requesting FCC to exempt from the TCPA all informational calls made by credit unions to cell phones where the wireless subscriber has an established business relationship with the credit union, or the called party is not charged for the call); In the Matter of Petition for Expedited Declaratory Ruling of Bebe Stores, Inc., Dkt. No. 02-278 (filed Nov. 18, 2016) (requesting retroactive waiver of TCPA’s “prior express written consent” requirement for robocalls for calls made by Bebe from October 16, 2013, to October 7, 2015). At least two petitions for declaratory ruling were filed by defendants in pending TCPA fax class actions last year, and those petitions also await decision from the FCC. …
Continue Reading 5 TCPA Class Action Trends to Watch in 2018 – Legislation, Administrative Law & Litigation

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

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 health plans, alleging that routine calls to patients and health plan members constitute “telemarketing” under the TCPA if they mention a product or service, whether that be medications, appointments, or information about health plans.
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

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 the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and then the court enters judgment for the plaintiff in that amount.”  136 S. Ct. at 672. …
Continue Reading Mooting Class Actions by Offer of Judgment – Episode 2: The Ninth Circuit Strikes Back

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 Supreme Court, however, left open the question of what happens when a defendant follows through with its offer by tendering complete individual relief, depositing the monetary relief with the court, and moving for entry of judgment.
Continue Reading Mooting Plaintiff’s Class Action Even After Plaintiff Refuses An Offer Of Judgment

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 resolves a vigorously contested question of constitutional law that has been the subject of great dispute among federal Courts of Appeals for the last decade—whether a Rule 68 offer of judgment for complete relief deprives a court of Article III jurisdiction to hear only a “case or controversy.”  In a 6-3 decision, the Supreme Court held that a live case and controversy still exists when a plaintiff refuses to accept an offer of judgment.  In so holding, however, the Supreme Court suggested that it might reach a different decision if a defendant deposits funds sufficient to satisfy the plaintiff’s individual claims, and then obtains a judgment from the trial court in this amount.        …
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

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 used to effectively terminate class claims, (ii) whether a class action can proceed even though the plaintiff representative has incurred no concrete, actual damage, and (iii) the validity of statistical modeling to substantiate alleged class-wide damages claims. …
Continue Reading Supreme Court Takes On Class Actions, Again