Adobe’s $1M TCPA Deal Results in $2,000 Payout for Class Members
A California federal court signed off on a $1 million settlement agreement, putting an end to a class action filed against Adobe over calls that allegedly violated the Telephone Consumer Protection Act (TCPA) and yielding $2,000 payments for class members....
By: Manatt, Phelps & Phillips, LLP

Federal Court Says Voice Service Providers "Mey" Face TCPA Liability for Facilitating Spoofed Robocalls, Denies Motion to Dismiss
When a dialing platform or voice service provider is sued under the Telephone Consumer Protection Act (TCPA), it often can successfully move to dismiss because it did not "make" the calls at issue or is immune from liability as a "common carrier."...
By: Davis Wright Tremaine LLP

Correct TCPA Exemptions, Industry Group Asks FCC
The recently added requirement of prior express written consent to exceed the cap on the number of non-telemarketing, prerecorded calls to customers should be reconsidered and removed, an industry group urged the Federal Communications Commission (FCC) in a new filing....
By: Manatt, Phelps & Phillips, LLP

Business Law Today April Month-in-Brief Posts
Maryland Commissioner of Financial Regulation Asserts Action against Non-Maryland State Bank for Lending Without State License - On January 21, 2021, the Maryland Commissioner of Financial Regulation filed an administrative charge letter against an FDIC-insured, out-of-state, state chartered bank and its non-bank service providers in connection with the bank's consumer lending platform. Among other allegations, the Commissioner asserted that the bank was required to hold state lending licenses...
By: Hudson Cook, LLP

Recent FCC Orders Implementing the TRACED Act
In 2019, Congress passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act—or TRACED Act (Act)—with the goal of complementing the now decades-old Telephone Consumer Protection Act (TCPA) to stem the tide of so-called illegal robocalls. The Federal Communications Commission (FCC), which is responsible for promulgating implementing regulations for both the TCPA and the new Act, issued two key orders in late 2020 that may impact many TCPA Connect readers....
By: Manatt, Phelps & Phillips, LLP

Texting Post-Duguid: Can Consent Practices Change?
Providing business teams with advice for sending text messages can be nothing short of frustrating. For businesses used to sending email marketing, the laws for texting are unexpected. Unlike the CAN-SPAM Act, TCPA requires prior express written consent if autodialed messages are sent that contain advertising content. And unlike CAN-SPAM, TCPA has a private right of action. On its face, the recent Supreme Court decision in Facebook, Inc. v. Duguid seemed to bring good news......
By: Sheppard Mullin Richter & Hampton LLP

Supreme Court Limits the Reach of the TCPA by Narrowing the Definition of “Autodialer”
On April 1, 2021, in Facebook, Inc. v. Duguid, the Supreme Court clarified what constitutes an “automatic telephone dialing system”—commonly referred to as an “autodialer”—under the Telephone Consumer Protection Act (“TCPA”). In so doing, the high court adopted the narrower definition of that term previously embraced by the Third, Seventh, and Eleventh Circuits and rejected a broader definition of “autodialer” used in the Second, Sixth, and Ninth Circuits. (We previously discussed this circuit...
By: King & Spalding

Common-Law Claims Associated with Unsolicited Faxes Held to be “Arising Out of” Violation of the TCPA
The United States Court of Appeals for the Seventh Circuit, applying Illinois law, has held that common-law tort claims regarding errant faxes arose out of the Telephone Consumer Protection Act (TCPA) so as to trigger an exclusion in the relevant insurance policy....
By: Wiley Rein LLP

Consumer Law Hinsights – April 2021
Consumer Law Hinsights is a monthly compilation of nationwide consumer protection cases of interest to financial services and accounts receivable management companies. Eleventh Circuit Delivers Surprising Decision on Use of Third-Party Vendors in FDCPA Case - The district court dismissed the case for lack of standing and Hunstein appealed.......
By: Hinshaw & Culbertson - Consumer Law Hinsights

Another Fifth Circuit Court to Follow in Creasy’s Footsteps
The Eastern District of Texas recently dismissed a plaintiff’s TCPA claim in Cunningham v. Matrix Financial Services, LLC,  No. 4:29-cv-896 (E.D. Tex. Mar. 31, 2021) for lack of subject matter jurisdiction. This decision came after the District Court rejected the magistrate judge’s recommendation that subject matter jurisdiction was proper. The recommendation focused on the Supreme Court’s recent decision in Barr v. American Association of Political Consultants (“AAPC”), 140 S. Ct. 2335...
By: Faegre Drinker Biddle & Reath LLP

One of These Things Is Not Like the Other: SCOTUS Narrows the TCPA’s Application in Autodialer Cases, But Certain Marketing and Messaging Practices Are Still at Risk
Back in 1991, when mobile phones were a luxury item weighing about two pounds and dial-up internet was getting ready to hit the market, Congress passed the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), with an eye towards reigning in robocalls and other abusive telemarketing practices of the time. Thirty years later, the TCPA still stands, prohibiting calls to consumers on the nationally curated ”do not call” list, and restricting the use of certain technologies, including...
By: Jackson Walker

Looking Forward After the U.S. Supreme Court Adopts Narrow, Business-Friendly TCPA "Autodialer" Standard
On April 1, 2021, the U.S. Supreme Court announced its decision in Facebook, Inc. v. Duguid, adopting the narrow "autodialer" standard under the Telephone Consumer Protection Act that Facebook favored. The unanimous opinion establishes that equipment can be regulated as a TCPA "autodialer" only if it has the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. This decision...
By: Hudson Cook, LLP

Sixth Circuit Rejects Strict Liability for Products Advertised via Fax, “Some Level of Knowledge” Required
The U.S. Court of Appeals for the Sixth Circuit recently re-affirmed its position that manufacturers of products advertised in unsolicited fax messages do not face strict liability under the TCPA’s junk-fax provision.  To face liability, the manufacturers must at least be aware that fax advertisements are being sent......
By: Faegre Drinker Biddle & Reath LLP

Supreme Court Narrows Definition of Autodialer in Facebook Ruling
The U.S. Supreme Court released its eagerly anticipated decision in Facebook Inc. v. Duguid yesterday, narrowly construing the definition of an automatic telephone dialing system, or autodialer, under the Telephone Consumer Protection Act (TCPA) and resolving the uncertainty that had led to a long-standing split in the circuit courts. Autodialer Definition and Interpretations - A circuit split regarding how broadly to define the types of automated technology regulated under the TCPA led to...
By: International Lawyers Network

TCPA Tracker - April 2021
Recent News - Petitions for Reconsideration of FCC’s December 2020 Report and Order - On March 17, 2021 Enterprise Communications Advocacy Coalition (ECAC) filed Petition for Reconsideration asking the FCC to reconsider certain TCPA exemptions codified in its December 2020 Report and Order. Additionally, ACA International (ACA), together with the Edison Electric Institute (EEI), the Cargo Airline Association (CAA), and the American Association of Healthcare Administrative Management (AAHAM)...
By: Kelley Drye & Warren LLP

TCPA FCC Petitions Tracker - April 2021
Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”). With the recent increase in litigation regarding alleged violations of the TCPA, many issues relating to the interpretation of the statute have been presented to the FCC by impacted parties. These petitions can be primary jurisdiction referrals or be presented directly by a litigant in a TCPA action. The FCC...
By: Kelley Drye & Warren LLP

Seventh Circuit Affirms "Information Laws" Exclusion Precludes Coverage for TCPA and Related Common Law Claims
The Seventh Circuit has affirmed a ruling by an Illinois federal district court, holding that an "Information Laws" exclusion bars coverage for an insured dental services company's TCPA claim. Mesa Laboratories, Inc. v. Federal Ins. Co. No. 20-1983 (April 20, 2021). Mesa, the insured, had been sued by a dentist for sending unsolicited faxes. The plaintiff alleged that Mesa violated the Telephone Consumer Protection Act (TCPA) and the Illinois Consumer Fraud and Deceptive Business Practices Act...
By: Hinshaw & Culbertson - Insights for Insurers

Whistling a new tune: Eleventh Circuit’s Winn-Dixie decision finds websites are not places of public accommodation under ADA
In a decision that creates new hurdles for website accessibility lawsuits under the Americans with Disabilities Act (ADA), on April 7, 2021, the US Court of Appeals for the Eleventh Circuit ruled that websites do not constitute places of public accommodation under Title III of the ADA. Moreover, to violate Title III an inaccessible website must create an “intangible barrier” to a disabled individual’s actual ability to access and enjoy equally the goods and services of a physical place of public...
By: Eversheds Sutherland (US) LLP

Supreme Court’s Decision in Facebook Litigation Narrows the Scope of the TCPA
At the beginning of April 2021, the U.S. Supreme Court unanimously ruled in favor of Facebook in Facebook, Inc. v. Duguid, reversing the decision of the Ninth Circuit Court of Appeals , holding: “To qualify as an ‘automatic telephone dialing system’ under the Telephone Consumer Protection Act (TCPA), a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.”...
By: Robinson+Cole Data Privacy + Security Insider

[Webinar] Tips from the Experts – Defending TCPA Lawsuits – Using Data Analysis Strategies and Support - April 29th, 2:00 pm ET
If you communicate with clients and prospects through phone call, text message, or fax campaigns, you are certainly familiar with the Telephone Consumer Protection Act (TCPA) that applies to these and other areas of direct marketing and consumer contacts. With more than 3,000 TCPA individual and class action lawsuits being levied each year, the business risks and potential for significant monetary exposure have greatly increased. Join us as we discuss how to use data to defend your company from...
By: Kelley Drye & Warren LLP

To The Relief Of Many E-Commerce Businesses, The U.S. Supreme Court Narrowly Construes A TCPA Requirement
In Facebook, Inc. v. Duguid, No. 19-511, slip op. (Apr. 1, 2021), the Supreme Court “friended” Facebook by holding that the social media platform’s login notification texts did not constitute an “automatic telephone dialing system” under the Telephone Consumer Protection Act (“TCPA”). The Court narrowly interpreted the TCPA’s restrictions on use of automatic telephone dialing systems, which now unequivocally apply only to devices that use a “random or sequential number generator” to send calls...
By: Stradling Yocca Carlson & Rauth

Sixth Circuit Holds Non-Expert Evidence Need Not Be Admissible to Support Class Certification, but Approves Stringent Claim Process That Aids Defendants
At Class Certification Stage, Non-Expert Evidence Must Be Reliable, but Not Necessarily Admissible: As the Supreme Court explained 40 years ago in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982), district courts must undertake a “rigorous analysis” to ensure that the requirements for class certification under Rule 23 have been satisfied. This analysis may require the court to “probe behind the pleadings,” while at other times, “the issues are plain enough from the...
By: Foley & Lardner LLP

Insurance Update - April 2021
In this month’s update, state high courts consider reimbursement of defense costs, reimbursement of medical marijuana costs, and reimbursement of ransomware payments. Federal courts determine whether a debt collector is entitled to a defense in a suit over its aggressive recovery tactics and whether a manufacturer is out of luck for its laid-back notice approach... Please see full Update below for more information....
By: Rivkin Radler LLP

A Court in NY Just Reined in the Definition of “Advertisements” Under the TCPA
At the time this is published, all the rage in the TCPA realm right now is talking about the Supreme Court’s recent decision in Facebook. And it was clearly a critical and much needed decision....
By: Benesch

TCPA Litigation Update: The Aftermath of the Supreme Court’s Facebook v. Duguid Decision
On April 1, 2021, the Supreme Court released its highly anticipated and unanimous decision in Facebook v. Duguid, resolving a long-standing circuit split on the definition of an automatic telephone dialing system (ATDS or autodialer) under the Telephone Consumer Protection Act (TCPA).  Reversing the Ninth Circuit, the Court concluded that merely having the capacity to store numbers and dial them automatically is not enough to make a device qualify as an ATDS....
By: Williams Mullen

SCOTUS Decision on Autodialers Under TCPA Provides Handy Primer on Statutory Construction and Interpretation
To many, robocalls have become one of the more annoying aspects of modern communications. Last year, the United States Supreme Court noted that in 2019 the federal government received 3.7 million complaints about automated calls. Now, in Facebook, Inc. v. Noah Duguid, et al., 592 U. S. ___ (2021), a long-awaited decision intended “to resolve a conflict among the Courts of Appeals regarding whether an autodialer must have the capacity to generate random or sequential phone numbers” to violate the...
By: White and Williams LLP

FCC’s Acting Chairwoman Rosenworcel to Continue the Agency’s Anti-Robocall Work
During the March Open Meeting, Federal Communications Commission (FCC) Acting Chairwoman Jessica Rosenworcel announced her first set of anti-robocall actions to kick off efforts to combat unwanted robocalls. The FCC’s actions included issuing the largest fine in the agency’s history for illegal robocall violations, sending six cease-and-desist letters to foreign and domestic voice providers demanding that they stop facilitating illegal robocalls, launching a Robocall Response Team, and...
By: Wiley Rein LLP

AD-ttorneys@law – April 2021 #2
Will Unanimous Supremes Stem the TCPA Tide? With a ‘random’ decision, SCOTUS reshapes the landscape of telemarketing law - What a Long Strange Trip It’s Been - Back in July of last year, we offered a summary of the sometimes-bumpy appellate terrain relating to the Telephone Consumer Protection Act (TCPA)....
By: BakerHostetler

Learning from the Past to Combat the “Entrepreneurial Model” of Class Actions
The meteoric rise in class actions over the past decade has been well-documented. Nowadays even mac & cheese is under attack, with two proposed nationwide class actions filed this month alone claiming labels such as “The Taste You Love” and “Made with Goodness!” are false and misleading....
By: Butler Snow LLP

[Webinar] Compliance Coffee Break: The Facebook, Inc. v. Duguid Supreme Court decision - What it means for TCPA private actions and companies using automated equipment for calls and texts - May 11th, 2:00 pm - 2:30 pm ET
On April 1, 2021, the U.S. Supreme Court announced its decision in Facebook, Inc. v. Duguid, adopting a narrow "autodialer" standard under the Telephone Consumer Protection Act (TCPA). In siding with Facebook, the Supreme Court sets a precedent that should drastically reduce the volume of TCPA autodialer litigation and help to protect financial institutions from new suits being filed against them. Join Michael Goodman as he explains what the ruling means for the industry, as well as what...
By: Hudson Cook, LLP

Highly Anticipated SCOTUS Ruling Upends TCPA Landscape
In a landmark decision issued April 1, 2021, the Supreme Court settled a hotly-contested debate over the definition of “automatic telephone dialing system” (or “autodialer”) under the 1991 Telephone Consumer Privacy Act (“TCPA”). The Court’s decision is likely to upend the TCPA compliance and litigation landscape, as the law’s private right of action coupled with steep penalties for non-compliance have spawned countless class action lawsuits in recent years. SCOTUS resolved a circuit split over...
By: BakerHostetler

Supreme Court Adopts Narrow Definition of Autodialer in TCPA Case
On April 1, 2021, the United States Supreme Court resolved a circuit split on what technology constitutes an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 et seq.  In the TCPA class action Facebook, Inc. v. Duguid, et al., No. 19-511 (Apr. 1, 2021), the Supreme Court unanimously ruled that to qualify as an ATDS, “a device must have the capacity either to store a telephone number using a random or sequential generator or to...
By: Goodwin

Facebook v. Duguid – Opting for Narrow ATDS Definition, Supreme Court Issues Game-Changing TCPA Decision
Businesses using automated technologies to call and text consumers may breathe a collective sigh of relief today as the Supreme Court confirmed in the Facebook v. Duguid decision what defense lawyers have been arguing for years – equipment that is merely capable of storing and dialing telephone numbers is not an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (the “TCPA”). Rather, the equipment must also use “a random or sequential number generator.”...
By: Snell & Wilmer

Supreme Court Clarifies and Narrows the Definition of an Autodialer under the TCPA
Over the past 20 years or so, if your marketing team has deployed or wanted to deploy text messaging to communicate with consumers, and you – as legal counsel – pushed back, you are probably familiar with the Telephone Consumer Protection Act (“TCPA”), its rigid opt-in requirements for commercial text messaging, and the thousands of cases and millions of dollars in fines and settlements paid out for TCPA violations....
By: Kilpatrick Townsend & Stockton LLP

S.D. Fla. Court Remands Case to State Court, Finding No Article III Injury
The Southern District of Florida recently remanded a case back to state court because the defendant that removed the case failed to establish that plaintiff suffered an Article III injury. Harris v. Travel Resorts of America, Inc., Civ. No. 2:20-14369-AMC (S.D. Fla. Mar. 31, 2021). Notably, the Court also found that plaintiff should be able to recover its attorneys’ fees in seeking remand given the defendant’s reversing its prior position on whether the Court had subject-matter jurisdiction over...
By: Faegre Drinker Biddle & Reath LLP

The Supreme Court’s Landmark Decision in Facebook v. Duguid: Top Takeaways and Issues to Watch
On April 1, 2021, the Supreme Court issued its highly anticipated decision in Facebook v. Duguid, resolving a long-standing circuit split on the definition of an automatic telephone dialing system (ATDS or autodialer) under the Telephone Consumer Protection Act (TCPA). The Court ruled that to qualify as an ATDS under the TCPA, a device must have the capacity to either (1) store a telephone number using a random or sequential number generator or (2) produce a telephone number using a random or...
By: Manatt, Phelps & Phillips, LLP

The Supreme Court’s Unanimous Decision Narrows TCPA’s Reach
The United States Supreme Court recently issued its long-awaited opinion clarifying what qualifies as an “autodialer” and is therefore governed by the Telephone Consumer Protection Act of 1991 (TCPA), potentially providing class action relief to many businesses. On April 1, 2021, the Supreme Court resolved a circuit split regarding the TCPA’s definition of “automatic telephone dialing system,” known as ATDS or autodialers....
By: Lathrop GPM

Supreme Court Decision a Win for Companies Marketing or Communicating via Phone or Text
In a landmark decision that will impact all companies that communicate with their customers via text or phone calls, the U.S. Supreme Court earlier this month overturned a broad interpretation that some federal courts had previously adopted with respect to the definition of an “automated telephone dialing system,” “ATDS,” or “autodialer.” In Facebook, Inc. v. Duguid et. al, the U.S. Supreme Court held that, to qualify as an autodialer, the equipment used by companies to dial consumers must...
By: Pierce Atwood LLP

SCOTUS Resolves Circuit Split Regarding the Definition of an Autodialer
Last week, the U.S. Supreme Court ruled unanimously in favor of the petitioner, a large social networking company, resolving the ongoing circuit split over the definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA). The Court held that a device must “have the capacity either to store, or to produce, a telephone number using a random or sequential number generator — a type of obsolescent marketing technology” to qualify as an ATDS....
By: Weiner Brodsky Kider PC

Supreme Court Accepts Narrow Definition of Autodialer, Limiting Reach of TCPA
On April 1, in a highly anticipated decision that likely will have a significant effect on litigation under the Telephone Consumer Protection Act (TCPA), the Supreme Court ruled on what qualifies as an “automatic telephone dialing system,” as that phrase is used in the TCPA. In a unanimous decision written by Justice Sotomayor, the Supreme Court decided that to qualify as an “automatic telephone dialing system”, a device must have the capacity either to store, or to produce, a telephone number...
By: King & Spalding

U.S. Supreme Court Clarifies TCPA's Definition of "Autodialer"
The ruling should limit the FCC's ability to rewrite the statute through administrative action. In Facebook, Inc. v. Duguid, the Supreme Court resolved the interpretive question at the heart of the swarm of litigation under the Telephone Consumer Protection Act ("TCPA")—whether equipment that dials from a list of numbers qualifies as an "automatic telephone dialing system" subject to the TCPA's statutory penalties. The Court held that it does not. Instead, to qualify as an autodialer,...
By: Jones Day

The U.S. Supreme Court Limits TCPA Liability By Narrowly Interpreting ATDS
On April 1, 2021, the U.S. Supreme Court in the class action case of Facebook, Inc. v. Duguid, No. 19-511, resolved a circuit court split on the meaning of automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) by unanimously reversing the Ninth Circuit’s broad definition and narrowly interpreting ATDS. Bringing much needed clarity the Federal Communications Commission has not been able to provide to date, the Supreme Court held that to qualify as ATDS...
By: Sheppard Mullin Richter & Hampton LLP

SCOTUS Keeps It Practical in Honing the Definition of an Autodialer under the TCPA
On April 1, 2021, the U.S. Supreme Court resolved a long standing issue plaguing providers of text message services and the companies engaging in text message marketing. Lower courts have been split in defining what constitutes an “automatic telephone dialing system” or auto-dialer with the definition either limited to equipment whose capacity to generate, store and dial telephone numbers was limited to random or sequential numbers or to any device with the capacity to store and automatically...
By: Pillsbury - Internet & Social Media Law Blog

Senator Manchin Narrows Path To Undoing TCPA Win
Senator Joe Manchin of West Virginia has confirmed he will not vote to eliminate the Senate filibuster rule. The news is a timely bonus for Texas businesses buoyed by the recent decision in Facebook, Inc. v. Duguid, in which the Supreme Court sharply limited the types of phone dialers implicating the Telephone Consumer Protection Act (“TCPA”) and its harsh statutory damages......
By: Fox Rothschild LLP