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.
In case there was any doubt that TCPA cases continue to flood federal court dockets nationwide, we recently reviewed the nearly 300 decisions referencing the TCPA that have been published since mid-December. Some of them have obviously made big headlines, like ACA v. FCC or the dueling interpretations of the ACA decision in Reyes v. BCA Fin. Servs. and Herrick v. GoDaddy.com, LLC. But many lesser-known decisions also could prove useful in defending TCPA cases. The decisions are listed by issue category in alphabetical order.
For more than 30 years, the Kansas City Media and the Law Seminar has been at the forefront of important discussions in the media bar. As this year’s committee chair, I may be a bit biased, but I think the focus of the seminar coming up on May 3-4 is one of the most important topics we have tackled to date: The impact of technology, culture, and politics on media freedoms. There’s no doubt that our media and political climate has changed dramatically over the past few years, and technology continues to push the envelope as laws struggle to keep up. It’s fascinating to think that at least half of this year’s panels involve topics that didn’t even exist when this seminar started — things like “social media,” “fake news,” and “Tweets.” Continue Reading Join Vedder Price at the 31st annual Media and the Law Seminar
On April 10, 2018, the Federal Financial Institutions Examination Council (the “FFIEC”), an interagency body composed of the Board of Governors of the Federal Reserve System, Consumer Financial Protection Bureau, Federal Deposit Insurance Corporation, National Credit Union Administration, Office of the Comptroller of the Currency and the State Liaison Committee, issued guidance to assist financial institutions in analyzing the use of cyber insurance in an effective risk management program (the “Guidance”).