News & Analysis as of

Unprofessional Marketing: Illinois Appellate Court Denies Professional Liability Coverage for TCPA Violation

On November 26, 2014, an Illinois appellate court held that a professional liability insurer had no duty to defend or indemnify its insured for a class action brought under the Telephone Consumer Protection Act (TCPA) because...more

FCC Is “allergic to brevity and clarity” With Respect To The TCPA, District Court Concludes

Amanda Balschmiter’s boyfriend, Victor Loshek, purchased a car with a loan that was serviced by TD Auto Finance LLC (“TDAF”), and subsequently defaulted on the loan. Balschmiter, on Loshek’s behalf, began making calls on her...more

Florida Federal Court Grants Rule 12(b)(6) Motion For Failure To Satisfy Twombly/Iqbal Pleading Standard In TCPA Case

In a TCPA action involving allegedly unsolicited cellular telephone calls made using an automated telephone dialing system (“ATDS”), the Middle District of Florida ruled that plaintiff had merely recited the elements for a...more

Thanks Obama (For America)! Single Defendant’s Offer Of Judgment Does Not Moot Claim Seeking Relief from Multiple Defendants

Lori Shamblin filed a putative class action against Obama For America, alleging that she had received two unsolicited telephone calls to her cellular phone that were made with an auto-dialer and used pre-recorded messages, in...more

TCPA Connect - November 2014

Ruling on ATDS Capability, California Court Dismisses TCPA Suit - Siding with courts that evaluate a system’s present – not potential – capacity to store or produce telephone numbers when considering whether a system...more

Avoid a Class Action Lawsuit Landing in Your Holiday Stocking

The holidays are quickly approaching, and shoppers are expected to spend in excess of $600 billion this season. The holiday season is shaping up to become a winter wonderland for retailers. However, brands that market or...more

Web-Based Platform Not Autodialer under TCPA, California Federal Court Rules

A California federal court recently ruled in Marks v. Crunch San Diego, LLC, that a third-party Web-based platform used by a health club to send text messages to its members was not an “automated telephone dialing system”...more

District Court Rejects FCC’s Expansive Definition Of ATDS In Putative TCPA Class Action

In Marks v. Crunch San Diego, LLC, No. 14-cv-00348 (S.D. Cal. Oct. 23, 2014), the Southern District California granted summary judgment in favor of Crunch San Diego, LLC (“Crunch”) in a putative class action alleging that...more

Eye on Privacy Newsletter - October 2014

In this issue: - FTC Recommends Improved Transparency and Security in Mobile Shopping Apps - Appellate Courts to Address What Constitutes an "Automatic Telephone Dialing System" Under the TCPA -...more

Political Campaigns: Consider Yourself Warned

If you had not noticed, the fall election campaign season is in full swing. The FCC’s Enforcement Bureau certainly has noticed, and reacted by releasing an unusual “Enforcement Advisory” this week, reminding campaigns and...more

Second Circuit Adopts FCC’s Narrow Construction of “Implied” Express Consent for Autodialed Calls to Cell Phones

This updates our report last summer on a Federal Communications Commission (FCC) letter brief filed at the invitation of the U.S. Court of Appeals for the Second Circuit in Nigro v. Mercantile Adjustment Bureau, which...more

Debt Collector’s Automated Calls Did Not Fall within TCPA’s ‘Prior Express Consent’ Exception, Second Circuit Holds

Yesterday, the Second Circuit held that a plaintiff did not provide his “prior express consent” under the federal Telephone Consumer Protection Act (TCPA) to automated calls to his cell phone when he gave his cell phone...more

‘Health Care’-Related Calls: Ambiguity at the Intersection of HIPAA and TCPA

The Federal Communications Commission (FCC) has established exemptions from certain requirements of the Telephone Consumer Protection Act (TCPA) for health care messages regulated under the Health Insurance Portability and...more

Legal Alert: Eleventh Circuit Reverses Outlier Decision on TCPA Prior Express Consent Standard

The U.S. Court of Appeals for the Eleventh Circuit has clarified the standard for “prior express consent” under the Telephone Consumer Protection Act (TCPA) in a September 29, 2014 decision reversing an outlier ruling by a...more

Eleventh Circuit Reverses Refusal to Honor FCC’s TCPA Debt Collection Declaratory Ruling, Fosters Uniformity on TCPA’s Autodialing...

The U.S. Court of Appeals for the Eleventh Circuit has brought a bit of legal balance back to automated debt collection calls, and reminded lower courts that when it comes to claims under the Telephone Consumer Protection Act...more

Mais Reversed: If You Give Me Your Number, I Can Call It, However I Want.

“If you give me your number, I can call it, however I want.” For more than twenty years this statement has summarized the Federal Communications Commission view of prior express consent under the Telephone Consumer Protection...more

Ninth Circuit Rules Marketing Consultant Can Be Held Vicariously Liable for Text Messages under TCPA

In a ruling issued late last week, the Ninth Circuit held that a marketing consultant that hired a firm to send text messages for a third party could also be held vicariously liable for violations of the Telephone Consumer...more

TCPA Hot Issues - TCPA Restricts Autodialed Calls, but Courts Split on Meaning of Autodialer

To autodial or not autodial, that is the question. The Telephone Consumer Protection Act (TCPA) defines autodialer as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or...more

The FCC’s declaratory ruling re TCPA vicarious liability – one year later, trends and takeaways

A year ago, we reported on the FCC’s Declaratory Ruling that addressed the issue of whether parties who did not actually place telemarketing robocalls could be either directly or vicariously liable for calls made on their...more

For Whom the Ring Tones: TCPA Litigation and the Insurance Industry

Insurance companies are increasingly the subject of Telephone Consumer Protection Act (TCPA) lawsuits. Any insurance company that communicates with its customers, job applicants, and others by phone or text using an automated...more

In The New Landscape of TCPA Litigation, No Industry Is Safe

In recent years, the number of private actions filed under the Telephone Consumer Protection Act (the “TCPA” or the “Act”) has risen sharply, but perhaps more concerning is that litigants are using the Act to target an...more

Capital One to Pay Largest TCPA Settlement on Record

Capital One Financial Corp. (“Capital One”) and three collection agencies have agreed to pay one of the largest settlement amounts in history — $75.5 million — to end a consolidated class action lawsuit alleging that the...more

TCPA Connect - August 2014

Capital One Sets Record With $75M TCPA Deal - In what is believed to be the largest Telephone Consumer Protection Act (TCPA) settlement on record, Capital One Bank, related companies, and their third-party collection...more

Legal Alert: Multi-Million Dollar Settlements Prompt Record Filing of TCPA Lawsuits

High-dollar settlements of class actions filed under the Telephone Consumer Protection Act appear to have prompted the filing of a record number of new TCPA cases in federal courts nationwide. In the largest TCPA settlement...more

TCPA Reform Gains Congressional Support

Industry efforts to persuade the Federal Communications Commission (FCC) to clarify its rules under the Telephone Consumer Protection Act (TCPA) recently received support from a group of 15 members of the U.S. House of...more

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