Yet another court has found that consent in a TCPA case is an inherently individualized issue that precludes class certification. In Newhart v. Quicken Loans, Inc., 2016 U.S. Dist. LEXIS 168721 (S.D. Fla. Oct. 13, 2016), the plaintiff moved to certify a class of individuals who had received calls from defendant on their cellular telephones, allegedly in violation of the TCPA. The court denied class certification, finding that “resolving the consent issue will depend upon multiple layers of individualized evidence about each call and the circumstances that preceded it. Therefore, predominance is lacking.” Id. at *6. Importantly, the court did not need to decide “whether any class member actually consented.” Id.

The court held that the consent analysis had two parts. First, the trier of fact must determine “whether each challenged call was made for a telemarketing purpose.” Id. If so, prior express written consent would be required. If not, the consent need not be in writing. Id. Second, the trier of fact must determine whether the defendant “possessed the requisite consent before making each call.” Id. at *6–7.  The court’s decision that an individualized analysis was necessary turned largely on its finding that the trier of fact must look at each individual call, not the “purpose of the overall campaign. Id. at *7–8. Analogizing to the TCPA fax provision, the court noted that, “[t]he FCC has expressly recognized, in the unsolicited fax context, that even when some aspect of a series of communications might meet the telemarketing rule, others might not, and so it is necessary to examine the communications separately.” Id. at *8. Because evidence showed that the challenged calls in the case were not uniform in purpose, the telemarketing issue could not be resolved on a class-wide basis. Id. at *10.  Continue Reading TCPA Class Certification Denials Continue to Pile Up, This Time in Florida

Smiling PigPlaintiffs’ lawyers across the land have trumpeted the U.S. Supreme Court’s decision in Spokeo as a victory (or at least not a loss). Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).  At least one plaintiff’s lawyer has gone so far as to suggest that defense lawyers who raise Spokeo-based arguments should fear sanctions.  As a Southern colleague of mine would say, those lawyers are trying to make a silk purse of a sow’s ear.

Although many post-Spokeo decisions have not yielded dismissal, many have, and they have done so based largely on Spokeo, which does more than reaffirm prior notions of standing and rather strengthens them in a way that is quite beneficial to corporate defendants facing trumped-up claims with no real harm.  One of the most recent defense victories post-Spokeo is Meyers v. Nicolet Rest. of De Pere, LLC, 2016 U.S. App. LEXIS 22139 (7th Cir. Dec. 13, 2016). Continue Reading Spokeo Was a Loss for Plaintiffs, Seventh Circuit Reaffirms

Change bulb idea to money with smartphone

On December 6, 2016, the U.S. Supreme Court, in Samsung Electronics Co. Ltd., v. Apple Inc., 580 U.S. ____ (2016), unanimously ruled that in multicomponent products, the “article of manufacture” subject to an award of damages under 35 U.S.C. §289 is not required to be the end product sold to consumers but may only be a component of the product.

In 2007, when Apple launched the iPhone, it had secured several design patents in connection with the launch. When Samsung released a series of smartphones resembling the iPhone, Apple sued Samsung, alleging that the various Samsung smartphones infringed Apple’s design patents. A jury found that several Samsung smartphones did infringe those patents. Apple was awarded $399 million in damages for Samsung’s design patent infringement, the entire profit Samsung made from its sales of the infringing smartphones. The Federal Circuit affirmed the damages award, rejecting Samsung’s argument that damages should be limited because the relevant articles of manufacture were the front face or screen rather than the entire smartphone. Continue Reading U.S. Supreme Court Revisits Design Patent Damages

The symbol of copyright protection. Seal and imprintAs of December 1, 2016, the Copyright Office requires that each online service provider designate an agent to receive notifications of claimed infringement as required under the Digital Millennium Copyright Act (“DMCA”) by the Office’s new online system, located here: https://dmca.copyright.gov/osp/p1.html. This online registration system and corresponding electronically generated directory replace the Office’s old paper-based system and directory. As a result, the Office will no longer accept paper designations, and service providers that appointed agents under the old paper-based system must submit a new designation under the new online system by December 31, 2017 in order to maintain its safe harbor1 from copyright infringement.

The DMCA includes provisions directed to copyright infringement on the Internet, notice and takedown procedures for copyright owners to report claimed infringement and safe harbors from copyright infringement liability for online service providers. Generally, online service providers are considered to be any provider of online services or network access, such as, Internet service providers, websites, hosting companies, mobile app publishers, others that allow users to post or store material on their systems, and search engines, directories, and other information location tools, etc. Continue Reading Online Service Providers – Important Update – Copyright Safe Harbor

I. Overview

While the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (the TCCWNA) has been around for over 30 years, there has been a recent surge in the filing of class action lawsuits under the statute against businesses engaged in e-commerce. The statute was enacted in 1981 to regulate “consumer contracts, warranties, notices and signs contain[ing] provisions which clearly violate the rights of consumers.” Although such provisions are legally unenforceable, the legislature reasoned that “their very inclusion in a contract, warranty, notice or sign deceives a consumer into thinking that they are enforceable and for this reason the consumer often fails to enforce his rights.”

Initially, the statute was not used very much and remained dormant during the first 30 years following its enactment. Recently, however, the plaintiffs’ bar has resurrected the statute, targeting the website terms and conditions of businesses engaged in e-commerce. This resurrection began in 2013 as a result of the New Jersey Supreme Court holding that certificates issued by restaurants and offered for purchase by an Internet marketer are subject to TCCWNA rules1, and it has continued for a few reasons. First, plaintiffs are asserting that the TCCWNA is very broad in scope. Indeed, plaintiffs’ lawyers contend that it applies to consumers who suffered no actual injury. Additionally, the statute provides for statutory damages of $100 per customer as well as attorney’s fees and costs, which creates the potential for very large monetary awards. Finally, while more guidance is necessary to determine how courts will treat e-commerce TCCWNA claims, there have been several plaintiff-friendly TCCWNA decisions in New Jersey. Continue Reading New Jersey Consumer Statute Presents Trap for Unwary Retailers Engaged in E-Commerce

This is the first in a series of blog articles relating to the topics to be discussed at the 30th Annual Media and the Law Seminar in Kansas City, Missouri on May 4-5, 2017. Blaine C. Kimrey and Bryan K. Clark of Vedder Price are on the planning committee for the conference. In this article, we explore recent developments related to “champerty,” which involves the funding of a lawsuit by a person with no direct interest in the case. The topic of revenge and retaliation against the media through litigation funding will be one of the topics at the 2017 seminar.

Earlier this month, Hulk Hogan settled his lawsuit against what remains of Gawker Media for $31 million, bringing to an end years of litigation that resulted in a stunning $140 million verdict that rocked the media defense bar. But the lasting implications of the case that ultimately shuttered Gawker.com remain unclear. For lawyers who defend media entities, the Gawker case is viewed as a cautionary tale of bad facts making bad law and the dangers of going against an adversary funded by an enemy with deep pockets. But not everyone agrees with this perspective. Speaking recently to the National Press Club, Peter Thiel (the billionaire who funded Hogan’s litigation) seemed to suggest that it was Hogan, rather than Gawker, who was unable to get fair treatment in the courts. “One of the striking things is if you are middle class, upper middle class, a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system,” Thiel said. “It costs too much.” Continue Reading What Hath Hulk Wrought – Media Girds for Battle vs. Billionaires

Despite claims from the plaintiffs’ bar that the Supreme Court’s decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016), did not significantly change the landscape for class actions, courts continue to rely on Spokeo to dismiss claims that have no concrete injury beyond a statutory violation. In the last month, two more cases — including one federal circuit-level decision and one TCPA decision — were dismissed because the plaintiff was unable to demonstrate Article III standing under Spokeo. These cases demonstrate the important role that Spokeo-related arguments can play in stymying class actions.

In Nicklaw v. CitiMortgage, Inc., 2016 U.S. App. LEXIS 18206 (11th Cir. Oct. 6, 2016), the court held that the plaintiff lacked Article III standing to pursue a claim where the class action complaint alleged statutory violations and sought only statutory damages.  The only claim asserted by the plaintiff in Nicklaw was that the plaintiff failed to comply with a New York statute requiring it to sign and record a certificate of discharge within 30 days of a mortgage satisfaction. Based on the defendant’s alleged failure to do so,  the plaintiff sought monetary damages. The court held that plaintiff alleged “neither a harm nor a material risk of harm that the district court could remedy.” This opinion marked the first time that the Eleventh Circuit had applied the Spokeo framework and will undoubtedly have a ripple effect on district court cases within the circuit (and beyond) when defendants make similar arguments. Although Nicklaw is not a media or privacy case, it certainly provides a roadmap for all manner of class actions. Continue Reading Spokeo as a Class-Action Silver Bullet? Two More Dismissals Based on Lack of Concrete Harm

A relatively new breed of data breach class action involves financial institutions suing merchants for expenses associated with credit card data breaches. Although merchants may not have contractual privity with the card issuers (and instead may have contractual privity with the credit card brands or payment processors), the financial institutions in these cases claim that the retailers should still compensate the financial institutions for costs associated with fraudulent charges and reissuance of credit cards as a result of a data breach. In the most recent decision involving these sorts of claims, an Illinois federal judge found the financial institutions’ claims against the Shnucks grocery store chain too vague to survive Rule 12 dismissal. See Cmty. Bank of Trenton v. Schnuck Mkts., 2016 U.S. Dist. LEXIS 133482 (S.D. Ill. Sept. 28, 2016). The court reasoned that although “the parties are charting relatively new territory in the data breach context by presenting a case between financial institutions and a merchant (as opposed to customers and a merchant), . . . the Court notes that the generality made it difficult to assess the plausibility of such claims.” Id. at *8-9. Continue Reading Schnucks Shakes Card Issuer Data Breach Class Action, For Now

Try as they might, Telephone Consumer Protection Act (TCPA) plaintiffs’ lawyers continue to face judicial resistance to deeming all phones autodialers (automatic telephone dialing systems or ATDS’s). In the latest example, the U.S. Southern District of California granted summary judgment to the defendant, finding the plaintiff’s “evidence” of autodialer use too speculative and too disconnected to the specific calls at issue. See Chyba v. Bayview Loan Serv., 2016 U.S. Dist. LEXIS 133849 (S.D. Cal. Sept. 27, 2016). As the court reasoned, “[N]o matter the name given to the equipment, the ‘basic function’ of an autodialer is ‘the capacity to dial numbers without human intervention.’” Id. at *5 (quoting In re Rules and Regulations Implementing the Tel. Consumer Prot Act of 1991, 18 FCC Rcd. 14014, 14092 (July 3, 2003)). Continue Reading Another Desperate TCPA ATDS Claim Bites the Dust

Telephone Consumer Protection Act (TCPA, 42 U.S.C. § 227) claims often are a waste of time and money. The plaintiffs frequently are serial (some having filed dozens of claims) and usually want to receive the alleged spam so they can sue and cash in. The harm is slim to non-existent, and the economic burden of the litigation on defendants (and the courts) is staggering. In a ruling on August 8, U.S. Northern District of Illinois Judge St. Eve ruled that she wouldn’t “stand” for this state of affairs any longer (or at least not with respect to the facts before her). She found that because the plaintiff was not in the “zone of interests” intended to be protected by the TCPA, the plaintiff lacked statutory standing. See Tel. Sci. Corp. v. Asset Recovery Solutions, 2016 U.S. Dist. LEXIS 104234, at *50 (N.D. Ill. Aug. 8, 2016).

As a result of selling a tool for screening alleged robocalls, plaintiff Telephone Science Corporation (TSC) claimed it had received a lot of calls in violation of the TCPA. Id. at *4. Judge St. Eve ruled that because the whole purpose of TSC’s business was to identify/screen robocalls, it couldn’t sue under the TCPA based on receipt of those robocalls. Id. at *48–50. In other words, TSC’s claims did not implicate the interests against privacy intrusion and nuisance underpinning the TCPA. Continue Reading Judges Can’t Stand TCPA Claims