Barr Ruling Cures Claims Arising During Life of Government-Debt Exception, Holds Texas District Court
Last week, the U.S. District Court for the Southern District of Texas concluded that plaintiffs can bring claims for violations of 47 U.S.C. § 227(b) that arose while the government-debt exception (“GDE”) to that provision was still on the books. The decision comes amid growing contention among courts in the wake of the U.S. Supreme Court’s decision last year in Barr v. American Association of Political Consultants, 140 S. Ct. 2335 (2020), which struck down the GDE as an unconstitutional...
By: Faegre Drinker Biddle & Reath LLP

For Cannabis Dispensaries, Ounce of Prevention Worth More than Pound of Cure
Imagine facing the prospect of a crippling class action lawsuit and having to engage in costly discovery to disprove the claims, even where clear evidence of innocence is presented at the pleading stage. For one cannabis dispensary, this wasn’t merely a thought exercise, it was reality....
By: Womble Bond Dickinson

Post-Facebook v. Duguid Litigation Roundup (UPDATED)
As part of Manatt’s continuing monthly coverage of the aftermath of Facebook v. Duguid and how district courts are applying it to determine whether a calling system meets the Supreme Court’s newly clarified definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), we report on several notable decisions since…...
By: Manatt, Phelps & Phillips, LLP

Financial Services Report - Fall 2021
We start this issue with a big, virtual welcome to our new colleague Maria Earley. Maria joined us last month as a partner in our Financial Services and Fintech Groups. She represents financial services and fintech companies in product development, regulatory compliance, state and federal enforcement and examination, state licensing, and transactional matters. She was a CFPB enforcement attorney for three years before going to private practice... Please see full Report below for more...
By: Morrison & Foerster LLP

Industry And Government Join Forces To Combat Robocalling
On September 8, 2021, the National Association of Attorneys General (NAAG), in coordination with Michigan Attorney General Dana Nessel and Ohio Attorney General Dave Yost, kicked off its Robocall Summit. The Summit included a series of panel discussions with industry representatives, state attorneys general (AGs), and enforcers from the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC), all focused on highlighting their respective efforts to trace and eliminate...
By: Cozen O'Connor

Sixth Circuit rejects Creasy line of cases, holding TCPA claims arising between November 2015 and July 2020 are viable
The Sixth Circuit recently became the first federal court of appeals to weigh in on whether plaintiffs can bring TCPA claims for conduct occurring between November 2015 and July 2020—the respective dates on which the unconstitutional government debt exception was passed and the Supreme Court’s decision in Barr v. AAPC declared it unconstitutional and severed it from the statute. Some district courts, such as the District of Louisiana in Creasy v. Charter Communications, Inc., 2020 WL 5761117...
By: Faegre Drinker Biddle & Reath LLP

New Petition Renewing Request for FCC Clarification of TCPA Status of “Ringless Voicemail” for “Get Out the Vote” Campaigns
The FCC recently announced a public comment period for a new Petition for Declaratory Ruling that seeks to have the FCC “clarify that delivery of a voice message directly to a voicemail box through ringless voicemail (RVM) technology does not constitute a ‘call’” subject to TCPA prohibitions. The Petition was filed by the U.S. Senate campaign for Sonny Perdue – Perdue for Senate, Inc. (Perdue) stemming from litigation in Georgia related to primary election delivery of RVMs to voters. Interested...
By: Faegre Drinker Biddle & Reath LLP

Litigation Under Florida’s Mini TCPA Begins to Heat Up
Since going into effect on July 1, 2021, the plaintiffs’ bar has wasted no time in seeking to test the limits of Florida’s mini-TCPA. In particular, one law firm active in prosecuting TCPA claims has filed at least half a dozen class action complaints under the Florida Telephone Solicitation Act, Fla. Stat. § 501.059......
By: Womble Bond Dickinson

Plaintiffs Alleging Use of Predictive Dialer Defeat Motion to Dismiss TCPA Class Action
A federal district court in Illinois recently denied an insurance provider’s motion to dismiss a TCPA class action complaint, finding that the alleged use of a predictive dialer was sufficient at the pleading stage. In Garner v. Allstate Insurance Company, No. 20 C 4693, 2021 WL 3857786 (N.D. Ill. 2021), plaintiffs alleged that Allstate violated the TCPA by making numerous unauthorized calls to their cellphone using an ATDS....
By: Womble Bond Dickinson

ATDS Analysis: What Matters Post-Facebook
Under the Telephone Consumer Protection Act (TCPA), technology matters, and the type of dialing system can drastically change the risk profile of outbound calling activities. If a marketer is using an Automatic Telephone Dialing System (ATDS), then consent must be obtained prior to placing marketing or informational calls and texts to consumers. While informational calls and…...
By: CompliancePoint

Sixth Circuit Reverses Lindenbaum, Finds TCPA Government-Backed Debt Exemption Did Not Render Remainder of Statute Unconstitutional
On Thursday, September 9, the U.S. Court of Appeals for the Sixth Circuit issued its opinion in Lindenbaum v. Realgy LLC, reversing a district court opinion that found the Telephone Consumer Protection Act was unconstitutional from 2015 to 2020. Specifically, the Sixth Circuit found that the government-backed debt exemption — added to the TCPA in 2015 and later struck down by the Supreme Court — was severable from the statute, and the statute did not implicate unfair restrictions on free speech....
By: Troutman Pepper

Company Using Predictive Dialer Prevails in Post-Facebook Decision
A federal court out of Nebraska recently issued a decision providing a decisive post-Facebook v. Duguid victory for a company using a predictive dialer. In Grome v. USAA Savings Bank, No. 4:19-CV-3080, 2021 WL 3883713 (D. Ne. Aug. 31, 2021), Grome alleged that USAA made several unwanted calls to her cell phone to collect a debt she incurred through the use of a credit card issued by the bank....
By: Womble Bond Dickinson

FCC Proposes Record $5.1 Million Robocalling Fine
The Federal Communications Commission recently proposed its largest ever robocall fine against John M. Burkman, Jacob Alexander Wohl, and J.M. Burkman & Associates LLC for apparently making more than 1,100 unlawful robocalls to wireless phones without prior express consent, in violation of the TCPA and the TRACED Act. The $5.1 million fine represents the first action where the FCC was not required to warn robocallers before robocall violations could be counted toward a proposed fine, consistent...
By: Womble Bond Dickinson

Northern District of California Rejects “Footnote Seven” Argument in TCPA Case
In its August 31 opinion, the Northern District of California rejected the plaintiff’s “Footnote Seven” argument in a Telephone Consumer Protection Act (TCPA) case, adding to the chorus of courts requiring TCPA plaintiffs to plead use of a random or sequential number generator to state a claim....
By: Troutman Pepper

FCC Proposes Record $5 Million TCPA Fine for 1,100 Prerecorded Election Robocalls
Keeping with its aggressive efforts to combat unwanted robocalls, the Federal Communications Commission (FCC) on August 24, 2021, proposed fining a duo of conservative activists and their business $5.135 million for allegedly making 1,141 unconsented, prerecorded robocalls to mobile phones in violation of the Telephone Consumer Protection Act (TCPA)....
By: Davis Wright Tremaine LLP

FCC Seeks to Assess a $5.1 Million TCPA Fine from Political Operatives Behind Alleged Anti-Voting Phone Calls
The Federal Communications Commission has proposed to slap a Virginia political firm and two of its principals with a $5,134,500 fine for placing over one thousand prerecorded phone calls to cell phones across the country without prior consent from recipients, in violation of the TCPA and Commission rules. The action is the FCC’s first big enforcement matter under the recently enacted Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act and demonstrates the Commission’s...
By: Faegre Drinker Biddle & Reath LLP

Data Privacy + Cybersecurity Insider - August 2021 #4
CYBERSECURITY - Emerging Ransomware Groups Getting into the Action - According to a report issued on August 24, 2021, by Unit 42 of Palo Alto Networks Ransomware Groups to Watch: Emerging Threats, four emerging ransomware groups “are currently affecting organizations and show signs of having the potential to become more prevalent in the future.” Please see full Publication below for more information....
By: Robinson & Cole LLP

FCC Imposes its Largest Fine to Date for Robocalls in Violation of the TCPA
This week the Federal Communications Commission (FCC) proposed its highest financial penalty against lobbyist and political consultant group, John M. Burkman, Jacob Alexander Wohl, and J.M. Burkman & Associates LLC (the Group), for allegedly making over 1,000 robocalls to voters without obtaining prior express consent as required by the Telephone Consumer Protection Act (TCPA)....
By: Robinson+Cole Data Privacy + Security Insider

TCPA Tracker - August 2021
Recent News - FCC Opens Proceeding to Determine if VoIP Providers Should Have Additional Anti-Robocall Obligations - On August 6, 2021, the FCC adopted a Further Notice of Proposed Rulemaking to consider additional anti-robocall requirements for interconnected VoIP provider that seek direct access to telephone numbers. Among the changes, the FCC proposes to require interconnected VoIP provider seeking access to numbers to “certify that it will use numbering resources lawfully; will not...
By: Kelley Drye & Warren LLP

TCPA FCC Petitions Tracker - August 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

All Consuming - Financial Litigation Insights, Volume 2, Issue 17
Biden Makes It Easier for Student Loan Borrowers to Get a Mortgage - "The new rule supported by the Biden administration proposed that FHA lenders drop the requirement to calculate student loan payments at 1%." Why this is important: As part of the application and approval process for mortgages, lenders review the overall debt burden of an applicant (or applicants). Lending rules for the Federal Housing Authority required that the debt load – referred to as the debt-to-income ratio – total 43...
By: Spilman Thomas & Battle, PLLC