Perhaps not surprisingly, there was no vacation this summer for TCPA litigation. We already addressed the 11th Circuit’s big decision on Article III standing in Salcedo. But we’ve also combed through the 150+ TCPA-related decisions over the summer to keep you apprised of the latest developments in this area of the law. We’ve compiled the most noteworthy decisions since our last report, and they’re listed below by issue category in alphabetical order.
For the vast majority of Americans, receiving a single unsolicited text message is a mere annoyance that does not warrant a federal lawsuit. But spurred by the language of the TCPA and a series of judicial decisions nationwide, a cottage industry has sprung up around filing putative class action lawsuits centered around this sort of alleged “harm.” Last week, the 11th Circuit dealt a significant blow to such cases, finding that receipt of a single unsolicited text message in violation of the TCPA is not sufficient to establish standing.
The volume of TCPA cases nationwide makes it incredibly difficult to keep up with all of the latest developments. Who wants to engage in the tedious task of reading more than 100 published decisions related to the TCPA several times a year? Lucky for you, the answer is us! We have once again taken on the burden of slogging through the swampy flood of TCPA cases nationwide, so you don’t have to. We have compiled the most noteworthy decisions since our last report, and they are listed below by issue category in alphabetical order.
On April 24, 2019, the U.S. Supreme Court issued an important decision touching a number of hot button issues and litigation threats facing American businesses — including class actions, arbitration agreements and data privacy.
The case, Lamps Plus, Inc. v. Varela, 17-988, 2019 WL 1780275 (U.S. Apr. 24, 2019), stemmed from a data breach in which a hacker posing as a company official “tricked” a Lamps Plus employee into disclosing the tax information of approximately 1,300 workers. Among those 1,300 workers was Frank Varela, the named plaintiff. Id. at *2. Following the data breach, Mr. Varela became the victim of identity theft when a fraudulent federal income tax return was filed in his name. Continue Reading SCOTUS Catapults Class Arbitration Onto the Endangered Species List
Recognizing that different levels of culpability warrant different annual civil penalty limits, the Department of Health and Human Services adopted a notification April 23, 2019, to be published in the Federal Register April 30, 2019, that reduces the majority of the caps on annual civil penalties. See 45 C.F.R. Part. 160. Continue Reading HIPAA Civil Penalty Annual Limits Plummet
One of the most common things we discuss with clients is the need to ensure that privacy policies accurately reflect the actual procedures in place for handling confidential information. The SEC reiterated that point last week in a Risk Alert that encouraged SEC-registered companies to review their written policies and procedures to ensure adequate implementation and compliance with the law. In the Risk Alert, the Office of Compliance Inspections and Examinations (“OCIE”) published a list of issues under Regulation S-P (the privacy rule) it has seen in the context of exams. Continue Reading SEC: Practice What You Preach on Privacy
Although there have not been any groundbreaking cases to start the new year, 2019 is off to a good start for the TCPA defense bar. Several courts have denied class certification in putative TCPA class actions while other courts have granted dismissal or summary judgment for the defendants. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order.
No Actual Harm Necessary to Assert Biometric Privacy Claims in Illinois
Today the Illinois Supreme Court held that an individual does not need to allege actual harm in order to seek liquidated damages and injunctive relief under the Illinois Biometric Information Privacy Act (BIPA or the Act) 740 ILCS 14/1 et seq. In Rosenbach v. Six Flags Entertainment Corp., the Court unanimously found that a plaintiff need only allege a technical violation of BIPA in order to be sufficiently “aggrieved” under the Act. The Court’s holding today is likely to embolden potential plaintiffs and increase the already considerable number of BIPA-related cases throughout Illinois and the country. Continue Reading BIPA ALERT: An Opening of the Litigation Floodgates?
As we head into 2019, there are plenty of reasons for optimism in the TCPA defense bar. Courts nationwide have continued to interpret the ACA v. FCC ruling favorably to defendants at both the motion to dismiss and summary judgment stages, and there have been other positive TCPA decisions during the past month as well. But unfortunately, it is not all good news. At least three courts have certified TCPA class actions in the past month. Although the facts of each case are obviously critical to assessing the propriety of class certification, we always prefer to see class certification denied in these sorts of cases. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order. Continue Reading TCPA Case Law Review (Vol. 7)
As 2018 comes to a close, there is no sign that the development of TCPA case law will be slowing any time soon. Since our last report in October, we have reviewed at least 75 new decisions discussing the TCPA in one way or another. Some cases, like Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC (which we discussed last week), make bigger news than others. But it’s important to keep tabs on the full TCPA litigation landscape to understand what patterns are emerging and what arguments are winning. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order. Continue Reading TCPA Case Law Review (Vol. 6)