Photo of Bryan K. Clark

Bryan K. Clark

Subscribe to Bryan K. Clark's Posts
Follow:Read more about Bryan K. ClarkBryan K.'s Twitter Profile

As we reach the peak of this year’s Spooky Season, we thought it would be helpful to revisit some of the scariest recent developments in the realm of TCPA litigation and compliance.  The conventional wisdom is that some of the new rules and regulations coming into play around the TCPA are going to lead to even more litigation under the statute.  But at the same time, the Supreme Court’s ruling earlier this year in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), has called into question much of what we thought we knew about administrative law, leading to ambiguity and uncertainty surrounding the TCPA and many other statutes. 

One-to-One Consent Rule

We’re now just under three months away from the January 27, 2025 effective date of the FCC’s one-to-one consent rule.  Formally adopted in December 2023, the rule requires that prior express written consent be obtained separately for each company seeking to use such consent.  This raises significant concerns about a company’s ability to communicate with not only third-party leads but also many first-party leads, if consent is not adequate under the new rule. 

The TCPA has long required prior express written consent for calls and texts that contain an artificial or prerecorded voice or are sent using an “automatic telephone dialing system.”  But the new rule states, in relevant part, that:Continue Reading TCPA Turnstile: Four Scariest Developments (and a Potential Ray of Light Amid the Fright) (TCPA Update Vol. 19)

A federal court last week sustained a First Amendment challenge to a Utah law aimed at addressing the use of social media platforms by minors, holding that the law’s proponents failed to demonstrate that the law served a compelling interest or was narrowly tailored.Continue Reading NetChoice Succeeds in Striking Down Utah Social Media Law Under First Amendment

In a welcome change for defendants, a recent amendment to the Biometric Information Privacy Act (“BIPA”) is expected to significantly curtail potential damages under the statute. SB 2979, which passed the General Assembly on May 16, 2024, clarifies that damages are per individual, rather than per violation, for violations of the collection provision under Section 15(b) and the disclosure provision under Section 15(d). Continue Reading BIPA Bellwether: General Assembly provides relief from “per scan” damages

Protection network security computer and safe your data concept. Laptop working develop coding program with key on keyboard
Protection network security computer and safe your data concept. Laptop working develop coding program with key on keyboard

Last week, the U.S. Securities and Exchange Commission (“SEC”) became the latest federal regulator to implement a data breach notification law. The commissioners unanimously voted to approve amendments to Regulation S-P (the “Final Rule”)—the regulation governing the use of consumers’ personal information and records—to require certain financial institutions to adopt and maintain data incident response procedures and to require notification to consumers of the potential compromise of their data within 30 days of discovery.Continue Reading SEC Joins Chorus of Regulators Requiring Data Breach Notifications

Protection network security computer and safe your data concept. Laptop working develop coding program with key on keyboard
Protection network security computer and safe your data concept. Laptop working develop coding program with key on keyboard

For years, we were able to tell most clients experiencing a potential data security incident that they likely had at least 30 days to notify any third parties about the incident – if they concluded it was a breach.  There were, of course, exceptions in certain regulated industries, but most companies fell within the scope of the general state data breach notification statutes, none of which required a response sooner than 30 days. And for many years, we didn’t have to worry about more urgent deadlines created by federal authorities. Continue Reading Breach Response: Is 72 hours the new 30 days?

Courthouse

Back in July, we shared some good news out of California when a state court judge ruled that the newest regulations under the California Consumer Privacy Act (“CCPA”) could not be enforced until March 2024.  But last week, the agency charged with enforcing the CCPA – the California Privacy Protection Agency (with the confusingly similar abbreviation of the “CPPA”) – won reversal of that opinion on appeal.  The ruling now gives the CPPA the authority to begin enforcing immediately the regulations that it enacted in March 2023.Continue Reading Delay Lifted in CCPA Regulations Enforcement

Just over halfway through 2023, nationwide TCPA jurisprudence is focused on further delineating the scope of the TCPA. As the dust settles from earlier battles over defining ATDS requirements, the cases from this year are largely aimed at establishing who can bring a claim under the TCPA and what conduct the statute covers. We summarize here developments since our last update, listed in alphabetical order by topic area.Continue Reading TCPA Turnstile: Scoping out the TCPA – 2023 Midyear Update (TCPA Case Update Vol. 18)

Companies that have been wrestling with exactly how to comply with the latest regulations under the California Consumer Privacy Act (“CCPA”) can breathe a sigh of relief after a California state court judge ruled last week that the newest regulations cannot be enforced until March 2024.  If you’re familiar with the changes to the CCPA, you know that regulators were supposed to have the accompanying regulations in place by July 2022, but failed to do so – in fact, the regulations were not final until March 29, 2023, nearly three months after the statutory effective date of January 1, 2023.  The California Privacy Protection Agency (“CPPA”) voluntarily extended the enforcement deadline to July 1, 2023, but even then, many companies were left scrambling until last Friday, when Judge James Arguelles of the Superior Court of California in Sacramento County entered an injunction barring enforcement of the regulations until March 2024.Continue Reading A Welcome Delay in CCPA Regulations Enforcement

As 2022 comes to a close, we wanted to look back at the most significant Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) decisions of the year.  While we didn’t see the types of landscape-altering decisions that we saw in 2021, there’s still plenty to take note of.  We summarize here the biggest developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: 2022 Year in Review (TCPA Case Update Vol. 17)