Shannon Petersen

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

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

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

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

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

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

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

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

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

California Court Sets High Bar For Class Certification In False Advertising Cases

The California Court of Appeal recently made it more difficult for plaintiffs to certify class actions based on false advertising or fraud.  In Downey v. Public Storage, Inc., Case No. B291662, ___Cal.App.5th___ (Feb. 6, 2020), the Court of Appeal affirmed an order denying class certification on the grounds that issues of deception and reliance were … Continue Reading

The Sixth Circuit Limits the Meaning of ATDS Under the 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

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

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

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

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

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

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

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

The California Supreme Court Holds Consumer Class Action Waivers In Arbitration Provisions Are Enforceable Under Federal Law

On August 3, 2015, the California Supreme Court issued its long-awaited arbitration decision in Sanchez v. Valencia Holding Co., LLC, No. B228027.  The Court held that the arbitration provision found in a standard form auto finance and sales contract widely used by auto dealerships and lenders throughout California is not unconscionable.  Not surprisingly, the Court … Continue Reading

Seventh Circuit Affirms Lodestar Method to Determine Attorneys’ Fees in TCPA Class Action Settlement

In Americana Art China Company, Inc. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243 (7th Cir. Feb. 18, 2014), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s attorneys’ fees award in a class action settlement arising from the defendant’s faxing of thousands of unsolicited advertisements in violation of the … Continue Reading

Ninth Circuit Rejects Percentage Method To Determine Attorneys’ Fees In Class Action Settlement

In Collado v. Toyota Motor Sales, U.S.A., Inc., Nos. 11-57013, 11-57023, 11-57030 (9th Cir. Dec. 16, 2013), the Ninth Circuit Court of Appeals reversed a district court’s attorneys’ fees award in a class action settlement alleging malfunctioning Toyota Prius headlights.  The Ninth Circuit held that the district court incorrectly applied federal law instead of state law … Continue Reading

CFPB Report Targets Arbitration Clauses

The Consumer Financial Protection Bureau (the “CFPB”) is a new federal agency responsible for regulating consumer financial products and services.  On December 12, 2013, the CFPB released a report on the use of arbitration clauses with class action waivers contained in credit card, prepaid card, and checking account contracts.  The Report is part of a … Continue Reading

Third and Seventh Circuit Courts of Appeals Issue TCPA Decisions

The Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), prohibits “robo-calls” to cell phones, text messages and “junk” faxes without prior consent. It imposes statutory penalties from $500 to $1,500 per violation, regardless of any actual damage, and is thus increasingly popular with the plaintiffs’ class action bar. Though passed in 1991, … Continue Reading

New FCC Interpretation Of “Express Consent” To Increase TCPA Class Action Liability

Plaintiffs frequently sue businesses in class actions for violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The TCPA generally prohibits calls and text messages to cell phones using automated systems or artificial or pre-recorded voice unless the consumer gives “prior express consent.” The TCPA imposes statutory penalties of … Continue Reading
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