TCPA Plaintiff Argues he wasn’t Injured in Attempt to Dodge Federal Jurisdiction
Usually, it is the plaintiff that argues he or she was injured, not the defendant. But, in an effort to stay in state court, some TCPA plaintiffs have taken the counterintuitive position that they did not suffer an injury in fact under Article III of the U.S. Constitution and, therefore, their claims cannot be heard in federal court......
By: Faegre Drinker Biddle & Reath LLP

Ringless Voicemail Compliance: 2021 Forecast (You’re Going to Get Sued For Using It)
Ringless Voicemail (“RVM”) technology provides companies the ability to reach a massive amount of people with low cost by avoiding typical telephony charges. RVM works by sending a voicemail message via server-to-server communication, bypassing the need for a consumer’s telephone to ring....
By: Benesch

Data Collection Class Actions On The Rise: Consider Your Privacy Compliance
Technology is moving at the speed of light while we all continue to live in a largely virtual world where we interface with each other, online, everyday. Sprinkled in are continued concerns about how companies, large and small, collect, share and retain personal information and a patchwork of laws and regulations to govern personal data. You need only look to the rise in state data privacy laws to witness the continued wave of concern over personal data......
By: SmithAmundsen LLC

FCC Sets More Dates for Reassigned Numbers Database Creation
Many Telephone Consumer Protection Act (TCPA) lawsuits have been based on “wrong numbers” or numbers which have been disconnected and reassigned. This is because callers only have consent to place calls to intended recipients—not the person with the reassigned number. The FCC has made efforts to create a centralized database for companies to identify whether a cellphone number has changed ownership, as currently, there’s not a 100% reliable source for this. The consent restriction under the TCPA...
By: CompliancePoint

FCC Order Causes Confusion Regarding Consent Required for Informational Calls to Residential Landlines
On December 30, 2020, the FCC issued a Report and Order (the December 2020 FCC Order) to implement Section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The December 2020 FCC Order contains a critical internal inconsistency that has caused significant confusion regarding the level of consent required for certain prerecorded informational calls to residential landlines. As discussed below, the inconsistency is almost certainly the result of...
By: Faegre Drinker Biddle & Reath LLP

A Pair of Federal Courts Find No Vicarious Liability Under the TCPA
Companies that rely on third parties to market products could face legal exposure under the Telephone Consumer Protection Act (TCPA) when those third-party agents call, text or fax consumers without the requisite consent. Under such circumstances, TCPA liability turn on issues of vicarious liability. A party may be held vicariously liable under federal common law principles of agency for TCPA violations committed by third-party telemarketers. Courts typically analyze vicarious liability under...
By: Womble Bond Dickinson

[Audio] PODCAST: Williams Mullen's Trending Now: An IP Podcast - Telecommunication Consumer Protection Act (TCPA): Update and Practical Guidance
Do you communicate with current and prospective customers electronically via phone or text, and if so do you have their consent? On the latest episode of Trending Now - An IP Podcast, Amber Duncan and Rob Van Arnam discuss an update and recent case decisions on the TCPA as well as practical guidance on compliance....
By: Williams Mullen

Another Court Rejects Threadbare Allegations of So-Called Vicarious Personal Jurisdiction
The District of Arizona recently dismissed Winters v. Grand Caribbean Cruises, Inc., No. 20-0168, 2021 WL 511217 (D. Ariz. Feb. 11, 2021), for lack of personal jurisdiction, finding that the plaintiffs had failed to establish that the caller’s contact with Arizona could be imputed to Grand Caribbean......
By: Faegre Drinker Biddle & Reath LLP

2020 Year in Review: Consumer Finance
For so many people and companies, 2020 was a year of uncertainty unlike any other in recent memory. It was no different for the financial services industry. The biggest uncertainty was COVID-19. The global pandemic had a profound effect on every segment of the industry - from credit reporting to mortgage lending - and every industry stakeholder - from financial services companies to consumers to regulators. The story for 2021 (hopefully) will be recovery and the aftereffects of the pandemic. To...
By: Goodwin

Top 10 International Anti-Corruption Developments For January 2021
In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments from the past month, with links to primary resources. This month we ask: Which countries had the best, and the worst, showings in Transparency International’s 2020 Corruption Perceptions Index?......
By: Morrison & Foerster LLP

Eastern District of Texas Holds that Professional TCPA Litigant Can Face Counterclaims for Fraud
A federal magistrate judge in the Eastern District of Texas recently addressed a question of first impression for the jurisdiction: Can professional plaintiffs who manufacture TCPA claims face counterclaims for fraud brought by the defendant in an abusive lawsuit? According to the magistrate and the district judge that adopted her recommendation, the answer is yes......
By: Faegre Drinker Biddle & Reath LLP

Top 10 Diligence Issues in Lead Generation Mergers and Acquisitions
As anyone who has been through a corporate sale process can tell you, there is no such thing as a “standard” M&A transaction. Every deal is different and presents a unique set of challenges. This is especially true of transactions involving lead generation companies, which can be very different than businesses in other industries. Amongst other differences, companies in this space utilize a wide variety of customized commercial arrangements and are subject to numerous industry-specific...
By: Sheppard Mullin Richter & Hampton LLP

Eleventh Circuit Confirms that Class Counsel Owes the Same Duties to Class Members as Named Plaintiffs
On December 1, 2020, the Eleventh Circuit issued an opinion reaffirming that class counsel does not owe a heightened fiduciary duty to a class representative as compared to the duty owed to absent class members. In June 2013, Cin-Q Autos, Inc. filed a putative class action against Buccaneers Limited Partnership (“the Buccaneers”), which does business as the Tampa Bay Buccaneers in the National Football League......
By: King & Spalding

Eleventh Circuit Affirms Dismissal of TCPA Claim for Lack of Standing Where Consumer Failed to Offer Any Evidence That Ringless Voicemails Rendered Her Phone Unavailable for Legitimate Calls or Messages
On December 9, 2020, the Eleventh Circuit affirmed the Northern District of Georgia’s dismissal of a putative class action alleging violations of the Telephone Consumer Protection Act (“TCPA”), holding that the named plaintiff lacked standing. The decision adds further factual nuance to the circuit’s evolving jurisprudence concerning what constitutes an injury in fact under the TCPA....
By: King & Spalding

Courts Becoming More Inclined to Grant Stays Pending Outcome in Facebook v. Duguid
On December 8, 2020, the Supreme Court heard oral argument in Facebook v. Duguid on the issue of the definition of an automatic telephone dialing system (“ATDS”) under the TCPA. Prior to oral argument, rulings on motions to stay TCPA cases pending the Supreme Court’s rulings were mixed. However, now that the Supreme Court has held oral argument (thus making the issuance of an opinion in the near future more probable), courts have been willing to grant stays with much greater frequency....
By: Womble Bond Dickinson

FCC Issues New Rules for Prerecorded Messages to Landlines
On December 30, 2020, the Federal Communications Commission (FCC) released new rules that changed a long-held exemption for sending informational prerecorded messages to residential landline numbers. Previously, informational calls using an artificial or prerecorded voice were exempt from consent requirements under the Telephone Consumer Protection Act (TCPA) if sent to a residential number, meaning the calls could be placed without first obtaining the consumer’s prior express consent....
By: CompliancePoint

Will Enforceability of the TCPA Be Barr’d?
In July 2020, the Supreme Court held in Barr v. Am. Ass’n Policitical Consultants, 140 S. Ct. 2335 (2020) that the TCPA’s government debt exception passed by Congress in 2015 rendered the statute an unconstitutional content-based restriction on free speech in violation of the First Amendment. To cure this constitutional infirmity, the Court severed the government debt exception from the TCPA. The Supreme Court’s holding in Barr left an open question over the validity of TCPA claims that had...
By: Womble Bond Dickinson

Two More District Courts Disagree with Creasy
Confusion continues amongst federal district courts in the wake of Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), the Supreme Court decision that held the TCPA’s government-debt exception—instituted via a 2015 amendment to the statute—violated the First Amendment. Courts recently have dealt with the issue of whether plaintiffs can bring TCPA claims for conduct occurring between 2015 and July 2020, the date the unconstitutional amendment was passed...
By: Faegre Drinker Biddle & Reath LLP

Data Privacy + Cybersecurity Insider - February 2021
CYBERSECURITY - Ransomware Incident Compromises Unemployment Claim Information of 1.6M in WA - It is being reported that the Office of the Washington State Auditor (SAO) is investigating a security incident, allegedly caused by a third-party vendor, that may have compromised the personal information of up to 1.6 million residents of the state of Washington who filed unemployment claims in 2020. Please see full Publication below for more information....
By: Robinson & Cole LLP

FCC Ruling Carves Out Exception for Certain Clinical Trial Calls Under the TCPA
Recently, the Federal Communications Commission (FCC) clarified that a call made using artificial or pre-recorded voice to a residential telephone line for the SOLE purpose of identifying individuals to participate in a clinical trial is exempt from the Telephone Consumer Protection Act (TCPA) “prior express written consent” requirement......
By: Robinson+Cole Data Privacy + Security Insider

December 2020 Torts & Insurance Fourth Circuit Cases of Interest
Periodically, Nexsen Pruet member Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the areas of tort & insurance law....
By: Nexsen Pruet, PLLC

AAPC In Review
In July of 2020, the Supreme Court issued its highly anticipated decision in Barr v. American Association of Political Consultants, Inc., 140 S. Ct. 2335 (2020), known ever since as the AAPC decision. The Supreme Court set out to answer a question years in the making - whether the “robocall” provisions of the Telephone Consumer Protection Act, by exempting calls to collect a debt owed to the federal government through a 2015 amendment, violated the First Amendment of the Constitution by favoring...
By: Benesch

One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement
The Eleventh Circuit recently imparted an important message to the class action bar, and in particular to attorneys representing different named plaintiffs in competing class actions: there is “only one gatekeeper under Rule 23,” so any challenge to a proposed class action settlement should be presented to the district judge deciding whether to approve that settlement, not to a different judge by way of a collateral attack on the proposed settlement....
By: Carlton Fields

District Court Grants Plaintiff’s Motion to Certify Class in Part, Refusing to Credit Testimony Regarding Unwritten Consent Policies
In Vandenberg & Sons Furniture, Inc. v. Alliance Funding Grp., Judge Quist of the District Court for the Western District of Michigan granted in part and denied in part the plaintiff’s motion for class certification arising from alleged violations of the Telephone Consumer Protection Act (TCPA). In its ruling, the court highlighted the importance of maintaining written TCPA policies....
By: Troutman Pepper

Class Action Trends Report Winter 2021
Last year presented many challenges, and 2021 offers a fresh start. In this issue of the Class Actions Trends Report we review the most significant developments of 2020 and take a look forward to what a new year and a new presidential administration may mean for employers. Topics addressed in this issue include: •Top 10 class action stories and trends from 2020- •What employers can expect from the Biden administration... Please see full Report below for more Information....
By: Jackson Lewis P.C.