Latest Publications


Second Circuit Affirms Exception for Flu Shot Reminder

Doubling down on the healthcare exception to the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals for the Second Circuit ruled that Rite Aid was not liable for flu shot reminder calls....more

Hot Topic Left in the Cold Over Inconclusive Consent Records

In February 2018, a judge in the Central District of California denied Hot Topic’s motion for summary judgment in a putative Telephone Consumer Protection Act class action stemming from text messages the retailer sent. ...more

FCC Wants More Input on Reassigned Numbers

What should the Federal Communications Commission (FCC) do about reassigned numbers in the Telephone Consumer Protection Act (TCPA) context? Everyone wants to know, but there are no clear answers yet....more

California Federal Court: Plaintiff’s Complaint Revokes Consent

In an interesting decision, a judge in the Northern District of California held that the service of a Telephone Consumer Protection Act (TCPA) complaint operates as a revocation of consent to receive phone calls from the...more

Statutory Damages Are ‘Penalties’ According to the Tenth Circuit

In Ace American Insurance Co. v. Dish Network, the Tenth Circuit ruled that statutory damages and injunctive relief under the Telephone Consumer Protection Act (TCPA) are uninsurable “penalties” under Colorado law, affirming...more

With Evidence of Possible Consent, Yahoo Scores Class Decertification

An Illinois federal district judge handed Yahoo a rare defense victory when it decertified the class of plaintiffs in a Telephone Consumer Protection Act (TCPA) lawsuit involving text messages sent from a user messaging...more

Fourth Circuit: Lower Courts Must Follow FCC’s TCPA Interpretations

In a recent ruling, the Fourth Circuit has followed its sister circuits in holding that district courts must follow the Federal Communications Commission’s (FCC) interpretations of the Telephone Consumer Protection Act...more

4/4/2018  /  Advertising , FCC , TCPA , Unsolicited Faxes

Top Takeaways From the D.C. Circuit’s Long-Awaited TCPA Decision

Executive Summary - The old adage “good things come to those to wait” showed itself to be true when on Friday, March 16, 2017, the U.S. Court of Appeals for the D.C. Circuit released its hotly anticipated decision in ACA...more

No Vicarious Liability Without Ratification, Ninth Circuit Rules

A trio of payday lenders and two marketing companies did not indirectly violate the Telephone Consumer Protection Act (TCPA) by working with a lead generator that used an automated program to send text message ads, the U.S....more

FTC Addresses Possible Mechanisms to Address Erroneously Blocked Robocalls

As anyone familiar with the TCPA well knows, not all “robocalls” are treated equal—some are allowed, some are not, some are restricted to varying degrees and some are stopped before the phone even rings (i.e., they are...more

3/13/2018  /  FCC , FTC , Robocalling , TCPA

Florida Court: No ATDS, No TCPA Suit

Finding that the telephone system used by the defendant was not an automatic telephone dialing system (ATDS), a Florida federal court dismissed a putative TCPA class action....more

Too Soon to Dismiss TCPA Action, Court Decides

A Connecticut judge denied a motion to dismiss a putative TCPA class action, ruling that whether the faxes at issue were unsolicited remains in dispute....more

Second Circuit Takes Sting out of Flu Shot Suit

The U.S. Court of Appeals for the Second Circuit ruled that the Healthcare Exception to the TCPA applied to a case involving a healthcare provider that sent a text message with a flu shot reminder to a patient who provided...more

Consent Revocation a Factual Inquiry Precluding Summary Judgment

A federal judge in the Middle District of Florida denied cross motions for summary judgment in Patterson v. Ally Financial, Inc., holding that whether the plaintiff effectively revoked consent to receive calls “is a...more

Eleventh Circuit’s Decision on Partial Revocation Stands

The Eleventh Circuit declined to reconsider its decision in Schweitzer v. Comenity Bank, denying the defendant’s motion to rehear the case. In August, the federal appellate panel held that consent can be partially revoked...more

Retail and Consumer Products Law Roundup - February 2018

DOJ Expands Opioid Enforcement Efforts Using Data Analytics - On Jan. 30, 2018, Attorney General Jeff Sessions announced that over the next 45 days, as part of its continued increase in opioid-related enforcement, the Drug...more

Clear Evidence of Consent Defeats TCPA Action

Finding “uncontroverted” evidence of consent, a federal district judge from the Eastern District of Michigan granted summary judgment in favor of the defendant in a TCPA action....more

2017 in Review: Significant TCPA Litigation and Regulatory Developments

Undeniably, 2017 was a big year for the Telephone Consumer Protection Act (TCPA), from the transition of power at the Federal Communications Commission (FCC) to a slew of cases directly impacting TCPA compliance and...more

Court Rejects Plaintiff’s Efforts to Expand Discovery Beyond Fax

Prohibiting the plaintiff from broader discovery based on “mere speculation” about the existence of other fax advertisements, a Pennsylvania federal court limited discovery in a putative TCPA class action to the fax received...more

Dinner Invite Fax Could Be an Ad

A three-page fax inviting the recipients to a dinner program could constitute an advertisement and was sufficient to establish standing, an Illinois federal court has ruled in denying a defendant’s motion to dismiss a TCPA...more

Table for Two: Restaurant’s Text Did Not Violate TCPA

A text message related to a transaction initiated by the plaintiff could not violate the TCPA, a California federal court held in dismissing a putative class action....more

Verizon Wins Summary Judgment in VoIP Calls Case

A federal district judge in Massachusetts issued a summary judgment ruling in favor of Verizon in a putative TCPA class action that promises to fan the flames in the growing debate over TCPA liability for calls made to...more

Court Finds Calls Regarding Medicaid Coverage Not Telemarketing

A Nevada federal court granted summary judgment in favor of a Telephone Consumer Protection Act (TCPA) defendant after concluding that the plaintiff granted prior express consent to be contacted when she provided her phone...more

Court Finds Revocation of Consent Unreasonable, Tosses Suit

Taking a stand on the revocation of consent, a New Jersey federal court judge rejected a plaintiff’s argument that she had reasonably conveyed her desire to be removed from a text message marketing list....more

12/28/2017  /  FCC , Kohls , Revocation , TCPA , Text Messages

FCC Permits Some Robocall Blocking

In a report and order, the Federal Communications Commission (FCC) approved new rules that will allow phone companies to block illegal robocalls originating from certain types of numbers....more

12/27/2017  /  Call Blocking , FCC , Robocalling
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