Ninth Circuit Affirms Denial of DIRECTV’s Motion To Compel Arbitration, Creating Circuit Split on Procedure for Determining Scope of Arbitration Agreements
The plaintiff had filed a class action alleging that DIRECTV made calls to his cell phone in violation of the Telephone Consumer Protection Act. DIRECTV attempted to compel arbitration by relying on an agreement that the plaintiff had signed with AT&T Mobility, which had become an affiliate of DIRECTV subsequent to the formation of the agreement. The agreement included an arbitration clause extending to “all disputes and claims between” the plaintiff and AT&T Mobility, “includ[ing], but … not...
By: Carlton Fields

Novel Arguments Could Help Defend Against Expansive TCPA Liability
Did the U.S. Supreme Court ruling in Barr v. American Association of Political Consultants wipe out nearly five years of liability under the Telephone Consumer Protection Act (TCPA)? One district court answered yes. Does the TCPA reach text messages? One amicus in Facebook v. Duguid — another case poised for resolution by the Supreme Court — argued no....
By: McGuireWoods LLP

[Webinar] CLE Institute - Advertising and Customer Engagement in the Digital Age - November 12th, 3:00 pm - 4:30 pm ET
Social media and influencers. Online feedback and electronic oversight. Data protection and privacy. Managing the legal issues surrounding doing business online is a significant concern for many in-house counsel. Join us for a program that will discuss the major regulations and potential pitfalls that exist in the digital landscape to ensure your company is ahead of the game. Key topics will include: - Data Protection – Challenges, best practices and recent guidance. - User-generated content,...
By: Williams Mullen

The Divided States of America – Mass Texting Edition
There are two wildly different interpretations of what constitutes an autodialer under the TCPA currently employed by different federal circuit courts. As Election Day approaches, there’s no doubt that candidates and political groups will be urging their supporters – and complete strangers – to get to the polls by sending an unprecedented amount of text messages. But before you hit “send,” you should know that Telephone Consumer Protection Act (TCPA) class action litigation may be lurking...
By: Arent Fox

Beginner's Guide to the TCPA
The Federal Communications Commission (FCC) was formed in 1934 when the Communications Act was signed into law. The FCC was created primarily to......
By: CompliancePoint

TCPA Subject to Supreme Court Scrutiny (Again) – What Exactly is Autodialing?
The  Telephone Consumer Protection Act (TCPA) was passed in 1991 and is known by many as the law that created the “do-not-call” rules.  The statute includes a number of restrictions related to telephone, text, and fact solicitations, including a prohibition against what is colloquially known as “autodialing” and “robocalls,” and it creates a private right of action in the event of a violation, providing for the recovery of $500 for each violation of actual monetary loss (whichever is greater),...
By: Rothwell, Figg, Ernst & Manbeck, P.C.

Real Property, Financial Services, & Title Insurance Update: Week Ending August 28, 2020
Financial Services Update - TCPA / Standing & Remand: defendant failed to establish plaintiff's standing where plaintiff received a single unsolicited text message from defendant - Jenkins v. Simply Healthcare Plans, Inc., No. 20-22677-CIV-ALTONAGA/Goodman (S.D. Fla. Aug. 17, 2020) (granting plaintiff's motion to remand)...
By: Carlton Fields

Eleventh Circuit Rejects Incentive and Award to Class Representative in TCPA Class Action
In Johnson v. NPAS Sols., LLC, No. 18-12344 (11th Cir. Sep. 17, 2020), the Eleventh Circuit (the “Court”) found a series of errors in an order entered by the Southern District of Florida approving the settlement of a class action alleging violations of the Telephone Consumer Protection Act. Significantly, the Court invalidated the use of incentive awards for named plaintiffs as inconsistent with the Federal Rules. The significant aspects of the Court’s ruling are as follows......
By: Troutman Pepper

Real Property, Financial Services, & Title Insurance Update: Week Ending August 14, 2020
Real Property Update - Foreclosure / Standing: assignee of note was entitled to foreclosure for being in possession of original note indorse in blank, consistent with the copy attached to the complaint - Deutsche Bank Nat'l Trust Co., as Trustee v. Harris, No. 4D19-2812 (Fla. 4th DCA Aug. 12, 2020) (reversed and remanded)...
By: Carlton Fields

Real Property, Financial Services, & Title Insurance Update: Week Ending September 11, 2020
Real Property Update - Due Process / Notice: due process rights violated in case involving claims for breach of contract for sale of property; party received insufficient notice of motion to amend complaint to add punitive damages and insufficient notice of trial under Florida Rule of Civil Procedure 1.440(c) - Lemkco Fla., Inc. v. Golf Properties of Fla., LLC, No. 5D18-3928 (Fla. 5th DCA Sept. 11, 2020) (reversing order denying motion to set aside final judgment)...
By: Carlton Fields

Plaintiff in Facebook v. Duguid Files Supreme Court Brief Supporting Broad Interpretation of ATDS Definition
The Plaintiff in Facebook, Inc. v. Duguid—the case that promises to resolve the growing circuit split over the TCPA’s definition of an ATDS—has filed his merits brief in the Supreme Court. Recall that the TCPA defines an ATDS as equipment that has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). With help from noted grammarian Bryan Garner, who signed the brief as his new...
By: Faegre Drinker Biddle & Reath LLP

SEC Adopts Rule Providing New Regulatory Framework For Fund-Of-Funds
In the News. The Securities and Exchange Commission (SEC) announced that it adopted Rule 12d1-4 under the Investment Company Act of 1940 (the 1940 Act), providing a new regulatory framework for fund-of-funds and final amendments to certain auditor independence requirements; the Consumer Financial Protection Bureau (CFPB) issued a final rule extending the Government-Sponsored Enterprise (GSE) Patch and provided clarification around RESPA marketing service agreements; the Federal Deposit Insurance...
By: Goodwin

Court Refuses to Toss TCPA Class Action Against Political Pollster Finding Plausible Allegations of ATDS Use
Written by Nikku Khalifian Political campaigns remain prime targets during election season. And, despite a narrow interpretation of an ATDS by the Seventh Circuit, one District Court in Illinois found that the Plaintiff had plausibly pled the Defendant’s use of an ATDS based upon the nature of its business as a political pollster....
By: Womble Bond Dickinson

Louisiana District Court Finds TCPA Robocall Prohibition Unconstitutional Prior to July 2020
On September 28, 2020, Judge Martin C. Feldman of the United States District Court for the Eastern District of Louisiana issued an important decision that could impact Telephone Consumer Protection Act (TCPA) litigation involving alleged robocalls across the United States. See Creasy v. Charter Commc’ns, Inc., No. 20-cv-1199, 2020 WL 5761117, at *2 (E.D. La. Sept. 28, 2020)....
By: Goodwin

TCPA Tracker - October 2020
Recent News - As Required by the TRACED Act, FCC Releases NPRM Examining Past TCPA Exemptions - On October 1, 2020 the FCC released a Notice of Proposed Rulemaking (NPRM) to seek input on proposed rules to codify previous exemptions to the TCPA’s consent requirements....
By: Kelley Drye & Warren LLP

TCPA FCC Petitions Tracker: October 2020
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

Financial Services Report – Fall 2020
We join the nation in mourning the passing of Supreme Court Justice Ruth Bader Ginsburg. Over her 20-year career before appointment to the D.C. circuit court, Justice Ginsburg fought for equal rights in the workplace, among many other important issues. Justice Ginsburg knew firsthand what it felt like to lose a job because of her gender, including when Supreme Court Justice Felix Frankfurter declined to hire her as one of his clerks because he wasn’t ready to hire a woman... Please see full...
By: Morrison & Foerster LLP

Eleventh Circuit Finds “Incentive” Or “Service” Payments For Named Plaintiffs Unlawful
The U.S. Court of Appeals for the Eleventh Circuit recently became the first federal appeals court to explicitly hold that “incentive” or “service” payments for the named plaintiffs in class actions are unlawful. Acknowledging that “hundreds of courts have handled similar settlements,” the court’s decision may have far-reaching consequences nationwide regarding the settlement of class action lawsuits......
By: Constangy, Brooks, Smith & Prophete, LLP

Kansas TCPA Ruling May Determine ATDS Cases in 10th Circuit
Recently, the District Court of Kansas analyzed the definition of an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) in Hampton v. Barclays Bank Del. The Court concluded the TCPA only applies to equipment that randomly or sequentially generates telephone numbers to be called and does not apply to dialers that call from a list of numbers from a customer database....
By: Troutman Pepper

Oregon District Court holds that Revocation Cannot Be Imputed to a Party That Never Received Revocation Notification
In Miler v. Td Bank United States, No. 3:20-cv-00340-BR, 2020 U.S. Dist. LEXIS 184658 (D. Or. Oct. 6, 2020), the District Court of Oregon granted Target’s motion to dismiss on the grounds that Plaintiff failed to allege facts sufficient to establish that Target received notice of Plaintiff’s written revocation notice, and that sending that notice to TD Bank was not sufficient to impute knowledge of the attempted revocation to Target....
By: Womble Bond Dickinson

Does A Consumer Arbitration Agreement Apply To A Company’s Future Affiliates? The Ninth And Fourth Circuits Disagree
If a company enters an arbitration agreement with a consumer, can its future affiliate companies enforce the arbitration agreement even though the affiliate relationship did not exist at the time the consumer signed the agreement?.....
By: Morrison & Foerster LLP - Class Dismissed

TCPA Class Actions – District Court Declares TCPA Robocalling Restriction Unconstitutional From 2015 to 2020
Takeaway: Most commentators (including this one) interpreted the U.S. Supreme Court’s fractured plurality opinion in Barr v. Am. Ass’n of Political Consultants, Inc, 140 S. Ct. 2335, 2343 (2020) (“AAPC”), as invalidating the government-debt exception as unconstitutional but preserving the remainder of the TCPA. See TCPA Class Actions – Supreme Court Severs Government Debt Collection Exception (July 15, 2020). In Creasy v. Charter Commc’ns, Inc., CV 20-1199, 2020 WL 5761117, at *1 (E.D. La....
By: Kilpatrick Townsend & Stockton LLP

11th Circuit Eliminates Incentive Awards for Class Action Plaintiffs
In a split decision, the 11th Circuit rejected a $6,000 incentive award for the named plaintiff in a TCPA class action. According to the majority in Johnson v. NPAS Solutions, LLC, U.S. Supreme Court precedent prohibits such awards—a holding that is bound to discourage class actions in the 11th Circuit. The decision is the most recent in a series of 11th Circuit rulings against TCPA plaintiffs....
By: Ballard Spahr LLP

Consumer Finance Issues Command Supreme Court's Attention in Volatile Term
The Supreme Court will consider several cases affecting the consumer financial services industry in its upcoming term, which starts October 5. The cases involve substantive issues of liability to consumers, questions relating to arbitrability, and limits on government agency powers....
By: Hudson Cook, LLP

First-of-its-Kind Decision Rejects Liability for Calls Made Before Supreme Court Cured TCPA's Unconstitutionality by Invalidating Debt-Collection Exception
Charter Communications may have just helped literally thousands of TCPA defendants snatch victory from the jaws of defeat. As our regular readers know, the Supreme Court recently held in Barr v. AAPC that a recent addition to the TCPA—specifically, an exemption for calls to collect federal debts—was a content-based regulation of speech that violated the First Amendment. It then severed that exception from the rest of the statute, and in doing so dashed the hopes of defendants that had advocated...
By: Faegre Drinker Biddle & Reath LLP

To Infinity and Beyond Immediate Parties: The Fourth and Ninth Circuit Split on the Enforceability of "Infinite Arbitration Clauses"
Imagine walking into an AT&T store to sign up for a service plan and buy a new cellphone. Perhaps, you are excited to finally get your hands on the latest iPhone. At the same time your new phone is placed into one hand, a pen…...
By: Vandeventer Black LLP

Supreme Court To Resolve Circuit Split On TCPA Autodialer Definition
On December 8, 2020, the United States Supreme Court will hold oral arguments to finally resolve a deepening split of authority in the Circuit Courts of Appeal regarding the definition of an "autodialer" under the Telephone Consumer Protection Act (TCPA) which definition has spawned extensive litigation and cost many businesses substantial dollars. Since 1991, the TCPA has been intended to protect consumers from unwanted telemarketing calls and generally prohibits (among other things) the use...
By: Moritt Hock & Hamroff LLP

FCC Proposed Rulemaking Presents an Opportunity to Reshape Some Existing TCPA Exemptions
Over the years, one of the biggest challenges many businesses face when assessing TCPA risks posed by a new calling or texting campaign has been determining whether the proposed use case can defensibly rely on one of the exemptions adopted by the Federal Communications Commission (FCC). That is because the FCC has repeatedly cautioned that…...
By: Faegre Drinker Biddle & Reath LLP

[Audio] Discussing the Telephone Consumer Protection Act (TCPA) and the 2020 Election
Wiley’s Election Law partner Brandi Zehr sits down with TMT partner Scott Delacourt and associate Boyd Garriott to discuss the impact of the Telephone Consumer Protection Act (TCPA) on political campaigns, the regulatory risk of the TCPA, and cases we should be watching and their possible implications for political callers....
By: Wiley Rein LLP

FCC Issues Rulemaking Notice Under TRACED Act Mandate to Revisit Autodialer and Prerecorded-Call Exceptions
Taking its next step to implement the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), the Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking (NPRM) by seeking input on potential adjustments to exceptions and allowances the FCC has adopted over the years to restrictions on autodialed and prerecorded calls and texts under the Telephone Consumer Protection Act (TCPA)....
By: Davis Wright Tremaine LLP

District Court Holds that Under Barr v. AAPC it Lacked Subject Matter Jurisdiction Over All TCPA Claims for Calls Made Prior to July 6, 2020
In Stacy Creasy, et al. v. Charter Communications, Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020) (Creasy), a putative class action, the plaintiffs accused defendant Charter Communications, Inc. of repeatedly violating § 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act (“TCPA”) which prohibits almost all telephone calls to cell phones using an automated telephone dialing system (“ATDS”). Applying the United States Supreme Court’s decision in Barr v. Am. Ass'n of...
By: Womble Bond Dickinson

AD-ttorneys@law – October 2020 #1
First Amendment Rescues Butter Marketing from Regulation’s Hot, Hot Knife - Miyoko’s Kitchen can keep buttering up consumers, but must let the hormones go - Precious?...
By: BakerHostetler

District of Oregon Rejects Constitutional Challenge to Near-Billion-Dollar Damages Award for TCPA Violations
On August 14, the U.S. District Court for the District of Oregon issued an order rejecting defendant ViSalus, Inc.’s (“ViSalus”) constitutional challenge to a $925,220,000 verdict based on 1,850,436 prerecorded calls ViSalus allegedly made to members of a certified class in violation of the Telephone Consumer Protection Act (“TCPA”). The court’s decision is notable because it is one of the few decisions that has addressed the constitutionality of such a large statutory damages award in a TCPA...
By: King & Spalding

Consumer Law Hinsights – September 2020
Consumer Law Hinsights is a monthly compilation of nationwide consumer protection cases of interest to financial services and accounts receivable management companies. This edition also highlights the recently updated 50 State Guide on Student Loan Servicing Regulations and Hinshaw's interactive tracker of state regulations related to the pandemic, along with a selection of popular posts from our blog, Consumer Crossroads....
By: Hinshaw & Culbertson - Consumer Law Hinsights

11th Circuit Overrules Incentive Award in Class Action Settlement
On September 17, 2020, the Eleventh Circuit Court of Appeals (Eleventh Circuit) issued an important decision regarding incentive payments in class-action settlements in Telephone Consumer Protection Act (TCPA) cases. In Johnson v. NPAS Solutions, LLC, Case No. 9:17-cv-80393 (11th Cir. 2020) (Johnson), a TCPA case, the Eleventh Circuit held that incentive payments to class representatives that compensate them for their time and rewards them for bringing a lawsuit are prohibited by the precedent...
By: Goodwin

Advertised Businesses Not Liable for Unauthorized Fax Advertisements, FCC Declares
On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization. See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020). This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts......
By: Faegre Drinker Biddle & Reath LLP

Eleventh Circuit Eliminates Incentive Awards for Class Action Plaintiffs
In a split decision, the Eleventh Circuit rejected a $6,000 incentive award for the named plaintiff in a TCPA class action. According to the majority in Johnson v. NPAS Solutions, LLC, U.S. Supreme Court precedent prohibits such awards—a holding that is bound to discourage class actions in the Eleventh Circuit. The decision is the most recent in a series of Eleventh Circuit’s rulings against TCPA plaintiffs....
By: Ballard Spahr LLP

Mey v. DIRECTV, LLC – The Fourth Circuit broadens the scope of the FAA to “infinite” arbitration clauses
Arbitration provisions appear in millions of contracts that cover many different types of agreements and transactions. For decades, the United States Supreme Court has expanded the Federal Arbitration Act (“FAA”), which facilitates contract-based dispute resolution through arbitration....
By: Wyrick Robbins Yates & Ponton LLP