The first half of 2021 saw one of the most significant TCPA rulings in many years as Facebook v. Duguid, 141 S. Ct. 1163 (2021), appeared to settle the long-debated question of what constitutes an automatic telephone dialing system (“ATDS”). But while the Supreme Court’s April ruling was extremely positive for the TCPA defense bar, it by no means brought an end to TCPA claims. Significant cases have continued to yield decisions, including cases that have sought to interpret Facebook. And the state of Florida stepped into the abyss in passing a “mini-TCPA” statute that went into effect earlier this month that regulates telemarketing at the state level, with a much broader definition of the relevant technology. Thus, the TCPA (and related statute) litigation landscape, while upended to some degree, remains unsettled, and we’ll continue to provide our insights. We summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: TCPA cases in a post-Facebook world (TCPA Case Update Vol. 15)
TCPA Turnstile: New Year, Same TCPA – For Now (TCPA Case Update Vol. 14)
One of the few things that hasn’t changed significantly since our last TCPA update is, well, the TCPA. We have a new year, a new President and multiple new COVID vaccines. And after the December oral argument in Facebook v. Duguid before the Supreme Court, 2021 could be the year when we receive clarity on the critical TCPA question of what constitutes an automatic telephone dialing system (“ATDS”). Indeed, the argument seemed positive for the TCPA defense bar, with Justices Alito and Thomas chafing at the anachronistic nature of the statute and Justices Sotomayor and Gorsuch expressing concerns about the idea that every cellphone user could be subject to civil liability. But for now, the TCPA litigation landscape remains the same bizarre, often inconsistent quagmire that it always has been. We’ll continue to be your guide through the morass, and we summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: New Year, Same TCPA – For Now (TCPA Case Update Vol. 14)
TCPA Turnstile: No summer vacation for the TCPA defense bar (TCPA Case Update Vol. 13)
Many had hoped that the summer of 2020 might bring the end of the TCPA as we know it, by way of the Supreme Court’s decision in Barr v. American Association of Political Consultants. Of course, that’s not how things played out. The government-backed debt exception is dead, but the rest of the TCPA is still very much alive. And while the pace of litigation has slowed because of the ongoing COVID-19 pandemic, TCPA decisions continue to roll in and there have been new developments before the FCC. We reviewed the TCPA cases published and other developments since our last update and compiled the most noteworthy items, listed below by issue category in alphabetical order.
Continue Reading TCPA Turnstile: No summer vacation for the TCPA defense bar (TCPA Case Update Vol. 13)
TCPA Turnstile: Case Update Vol. 10
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.
Continue Reading TCPA Turnstile: Case Update Vol. 10
TCPA Case Law Review (Vol. 9): How are there still this many TCPA cases?
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.
Continue Reading TCPA Case Law Review (Vol. 9): How are there still this many TCPA cases?
TCPA Case Law Review (Vol. 7)
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)
TCPA Case Law Review (Vol. 6)
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)
A Holiday Wish List for Privacy Litigators
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.
Continue Reading A Holiday Wish List for Privacy Litigators
TCPA Case Law Review (Vol. 5)
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.
Continue Reading TCPA Case Law Review (Vol. 5)
TCPA Alert – What’s that Crunch-ing sound? Reason being destroyed in the Ninth Circuit
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).