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)
As we speed past Thanksgiving and enter the holiday season, kids shouldn’t be the only ones putting together their wish lists. Here are some things that might not fit under a tree, but would certainly fill us with the joy of the season.
It has now been more than four months since the GDPR was enacted, leaving corporations around the world grappling with the implications. Bryan Clark recently offered some insights in Digital Journal’s “Q&A: Analyzing GDPR’s Impact So Far,” where he discussed the impact of GDPR on people and companies operating outside of Europe, similar privacy laws that may impact the U.S., how businesses can prepare for new privacy laws, and the impact on consumers. Continue Reading In the News: Media & Privacy Risk Report Editors Blaine Kimrey and Bryan Clark Discuss GDPR in <i>AdExchanger</i> and <i>Digital Journal</i>
Since our last TCPA update at the end of August, the biggest news has obviously been the Marks v. Crunch case – you can read our thoughts on that case here. But that was not the only meaningful case decided in the last month or so. Decisions continue to roll in on critical issues such as class certification, the definition of an ATDS, and the viability of negotiated settlements. Below are the most notable cases for this review period. The decisions are listed by issue category in alphabetical order.
Ever since the D.C. Circuit’s ruling six months ago in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), which invalidated the FCC’s interpretation of an Automatic Telephone Dialing System (“ATDS”), a consensus had been growing. Led by the Third Circuit in Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018), many courts nationwide have found that the ACA opinion invalidates all of the FCC’s previous ATDS definitions and stands for the proposition that an ATDS is a system that uses a random or sequential number generator. But because things can never be that easy in the TCPA space, the Ninth Circuit created a circuit split last week with its decision in Marks v. Crunch San Diego, LLC, 2018 U.S. App. LEXIS 26883 (9th Cir. Sept. 20, 2018).
If you have seen members of the TCPA plaintiffs’ bar sweating a bit more than usual lately, it’s not just the summer heat—they’re probably concerned about the steady stream of positive cases for the defense bar over the past month. Since our last update, a considerable number of new TCPA decisions have come out, including several circuit level decisions. And while not every case discussed in this edition of the TCPA Case Law Review went the way of the defendants, a clear tendency this summer is for courts to rule against TCPA class action plaintiffs. Let’s hope this is one trend that continues after Labor Day.
On August 9, 2018, the United States District Court for the Northern District of Alabama agreed with the Second Circuit Court of Appeals decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d (2d Cir. 2017), which held that contractual consent to be contacted by an automatic telephone dialing system (“ATDS”) could not (and cannot) be unilaterally revoked because the consent formed part of a bargained-for exchange in the contract. The Second Circuit’s ruling was favorable for companies seeking clarification on consent revocation issues that exist with respect to claims brought under the Telephone Consumer Protection Act (“TCPA”).
The TCPA continues to generate significant case law nationwide. Since our last published update on June 5, 2018, there have been several significant decisions that all TCPA defense practitioners should be aware of. As always, we will continue to keep you apprised of developments going forward. The decisions are listed by issue category in alphabetical order.
Continue Reading TCPA Case Law Review (Vol. 3)
Just when you thought it was safe to open your e-mail again without being inundated with updated privacy policies, here comes the California Consumer Privacy Act of 2018 (“CCPA”). The new law, which goes into effect on January 1, 2020, will expand the privacy rights of California residents and bring some of the EU’s widely discussed General Data Protection Regulation (“GDPR”) to the United States. There will be lots to talk about over the next year and a half as companies gear up for compliance, but here are some key features to be aware of:
Clients regularly ask: If we win this putative class action, can the opposition just file another one on behalf of another as-yet-unidentified putative class representative? Until June 11, the answer was “Maybe?” Now, the answer is clearly no.
In a unanimous decision, the Supreme Court (in reversing the Ninth Circuit) clarified that the tolling recognized under American Pipe applies only to successive individual actions, not successive putative class actions. China Agritech v. Resh, 2018 U.S. LEXIS 3502, *23 (U.S. 2018). According to the opinion authored by Justice Ginsburg: “We hold that American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action. The ‘efficiency and economy of litigation’ that support tolling of individual claims . . . do not support maintenance of untimely successive class actions.” Id. at *13-*14.
In her concurrence in the judgment, Justice Sotomayor wrote she would limit the holding to cases under the PSLRA. Id. at *24. But she was alone in that view. Id.
We applaud the U.S. Supreme Court in continuing to recognize the inherent limits of class action procedure, and we look forward to similar opinions in the future.