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Partnering Perspectives - Fall 2017

With the US poised to decrease regulation and the outcome of Brexit unknown, multinational institutions face a great deal of unpredictability in the regulatory landscape. In this edition of Partnering Perspectives, we look at...more

No End in Sight: ADA Website Accessibility Lawsuits Continue Unabated in 2017

The onslaught of class action lawsuits alleging violations of the Americans with Disabilities Act (ADA), based on the alleged failure to maintain ADA compliant websites that are accessible to the blind and visually impaired,...more

CFPB Finalizes Payday Lending Rule - With a Few Changes

On October 5, 2017, the Consumer Financial Protection Bureau (CFPB) finalized its new rules governing the small-dollar consumer loan market, based on a proposal first released in June 2016. The rule requires underwriting for...more

Cutting the Cord: Can Courts Trim TCPA Statutory Damages?

Whether courts can reduce statutory damages awards under the Telephone Consumer Protection Act (TCPA) is an ongoing issue because potential liability can be strikingly disproportionate given the lack of actual harm to class...more

Got Game? Privacy Exclusion Results in Denial of Coverage in L.A. Lakers TCPA Suit

An insurance policy exclusion for invasion of privacy claims precludes coverage for the L.A. Lakers in a Telephone Consumer Protection Act (TCPA) suit, according to a divided panel ruling by the US Court of Appeals for the...more

Stand Up, Sit Down, Stand Up: Ninth Circuit Revives Spokeo No-injury Suit

In a decision surely welcomed by the plaintiffs’ bar, the US Court of Appeals for the Ninth Circuit held, on August 15, 2017, that a putative class action plaintiff has Article III standing as long as the plaintiff alleges...more

File Not Found: Lack of Fax or Call Logs Doom Class Ascertainability in TCPA Cases

What is seemingly a growing divide between circuits has developed on the appropriate standard for assessing ascertainability in federal class actions, including Telephone Consumer Protection Act (TCPA) class actions....more

Spoiling for a Fight: CFPB Issues Ban on Class Waivers, Daring Congress to Act

On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued its long-awaited and controversial rule prohibiting class action waivers in consumer contracts. Unless Congress uses the Congressional Review Act (CRA)...more

All Dressed Up and Nowhere to Go: Ringless Voicemail FCC Petition Withdrawn

In the face of significant opposition from virtually all quarters, All About The Message, LLC (AATM), has withdrawn its petition asking the Federal Communications Commission (FCC) for a declaratory ruling that a prerecorded...more

Redefining the Denominator: Supreme Court Adopts New Test in Regulatory Taking Case 

In Murr v. Wisconsin, the US Supreme Court declined to find that a landowner's riverfront property was the subject of a regulatory taking. In a 5-3 decision, the majority adopted a new test for defining the bounds of the...more

Locked-In: TCPA Consent Not Revocable If a Term of Contract

Consent to be contacted under the Telephone Consumer Protection Act (TCPA) is not revocable if included as a term of a written contract, according to a decision by the US Court of Appeals for the Second Circuit in Reyes v....more

Don’t Get Caught Whistling Winn-Dixie: Rethinking ADA Compliance After First-of-its-Kind Verdict

On June 13, 2017, the US District Court for the Southern District of Florida issued a verdict in a first-of-its-kind federal trial involving the alleged inaccessibility of a website under the Americans with Disabilities Act...more

Partnering Perspectives - Summer 2017

As we implement the Eversheds Sutherland combination and expand our ability to serve clients around the globe, our US and international teams are working together to analyze issues impacting clients doing business in multiple...more

In Justice Gorsuch’s First Opinion, Supreme Court Holds That Debt Buyers Are Exempt From Fair Debt Collection Practices Act

On June 12, 2017, the U.S. Supreme Court held in Henson v. Santander Consumer USA that the Fair Debt Collection Practices Act does not apply to debt buyers, as opposed to debt collectors working on behalf of loan originators....more

See No Evil: Willful Blindness Costs Dish Network $341,000,000 For TCPA Violations

Willful blindness when it comes to the Telephone Consumer Protection Act (TCPA) could cost companies millions in statutory damages and penalties. Dish Network has been ordered in two cases to pay a total of $341 million based...more

DC Circuit Denies Rehearing of TCPA Fax Decision

On June 6, 2017, the US Court of Appeals for the DC Circuit denied the government’s request for an en banc rehearing of a March 31, 2017, decision that invalidated a decade-old Federal Communications Commission (FCC) rule...more

6/14/2017  /  Faxes , FCC , Lack of Authority , Opt-Outs , TCPA

Less Is More or More Is More? Differing Regulatory Ethos in the United States and United Kingdom Pose Challenges for Financial...

The United States is poised to usher in an era of decreased regulation of financial institutions while the trend in the United Kingdom maintains relatively robust regulation of the financial services sector in line with...more

No Harm, No Foul? FCC Seeks Comment on Direct-to-Voicemail Services and the TCPA

Does a prerecorded message delivered directly to the recipient’s voicemail constitute a “call” subject to the restrictions of the Telephone Consumer Protection Act (TCPA)? The Federal Communications Commission (FCC) is...more

5/1/2017  /  Cell Phones , FCC , Public Comment , TCPA , Voicemail

Past is Prologue: The Future of US and UK Arbitration

Much has been said and written about the UK public’s decision in June 2016 to leave the European Union and the November 2016 election of President Donald Trump. It seems obvious that these momentous events will have profound...more

Forcing the Issue? California Supreme Court Opens Door for Challenges to Mandatory Arbitration Clauses

Consistent with the historical reluctance of California courts to enforce arbitration provisions in consumer contracts, on April 6, 2017, the California Supreme Court ruled that an arbitration provision that waived an...more

Blood in the Water: Courts Evaluate Standing in Three Recent TCCWNA Class Actions

The rising tide of class actions alleging violations of New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA, pronounced “tic-wun-uh”) has been a cause of concern for companies advertising and selling to...more

Untangling the Cord: Seeking Clarity on the TCPA’s Definition of Autodialer

Businesses and other stakeholders continue to grapple with what constitutes an “automatic telephone dialing system” (ATDS or autodialer) as it is defined in the Telephone Consumer Protection Act (TCPA). As noted previously,...more

4/6/2017  /  Auto-Dialed Calls , FCC , TCPA

Just the Fax: DC Circuit Rejects FCC Requirement of Opt-Out Language on Solicited Faxes Under the TCPA

In a March 31, 2017 ruling, the US Court of Appeals for the DC Circuit invalidated a 2006 Federal Communications Commission (FCC) rule requiring businesses to include opt-out notices on solicited fax advertisements sent with...more

Opting Out: TCPA Fax Opt-Out Requirement Struck Down—D.C. Circuit Says FCC Can’t Require Opt-Out Notices on Solicited Faxes

The US Court of Appeals for the D.C. Circuit invalidated a rule issued by the Federal Communications Commission (FCC) in 2006 requiring businesses to include opt-out notices when the recipient has consented to receive the...more

4/3/2017  /  Appeals , FCC , Opt-Outs , TCPA , Unsolicited Faxes

Do Not Go Gentle Into that Good Night: Strategies for Defending Against TCCWNA Class Actions

Businesses engaged in advertising and sales practices involving New Jersey consumers have been contending with an increase in the number of class action lawsuits brought under New Jersey’s Truth-in-Consumer Contract, Warranty...more

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