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Affirmatively Non-Affirmative Defenses: Court Strikes Multiple Defenses To A TCPA Claim The Defendant Improperly Characterized As “Affirmative” Defenses.

24 Apr 201929 Apr 2019

Federal district courts are busy. They have important cases, including significant criminal cases where a defendant’s freedom is on the line and real civil suits that can make or break…

Class Actions

Broader Is Better: Court Holds Arbitration Agreement Targeted To Medical Malpractice Lawsuits Is Ambiguous As Applied To TCPA Claims.

23 Apr 201924 Apr 2019

As we have mentioned before at TCPAWorld, drafting clear arbitration agreements, broad enough to cover all future disputes, is critical in consumer contracts. Failure to do so can lead to…

FCC Action…

The March of Technology: Takeaways from T-Mobile’s Announcement of Anti-Robocalling Feature

18 Apr 2019

If you listened to Episode 3 of the Unprecedented podcast, you are aware of the cutting-edge technologies that companies like YouMail and Hiya are deploying to help consumers avoid scam…

Uncategorized

Stoops Extended!: Court Holds Calls to Cell Phone Associated with Sham Business Do Not Afford Standing to Assert TCPA Claim

17 Apr 201914 Jul 2020

As the Czar just reported, TCPAWorld is full of alleged shams and manufactured lawsuits. Many courts have allowed suits by “regular” professional TCPA Plaintiffs to proceed, but when a Plaintiff…

Uncategorized

Professional TCPA Plaintiffs Keep Cashing In: District Court Distinguishes Stoops –Allows Professional Plaintiff to Proceed with (Allegedly) Manufactured Suit

12 Apr 201914 Jul 2020

I guess it still pays to be a professional in TCPAWorld. After the Czar won the day in the Stoops case a few years back—setting forth a clear path to…

Class Actions…

The TCPA and Tiger Woods: Florida District Court Lets the Ball Lie on Issue of Constitutionality

10 Apr 201911 Apr 2019

A United States District Court Judge for the Southern District of Florida must have Masters Weekend on her mind, because she just tee-d up a constitutional challenge to our favorite…

Uncategorized

If at First You Don’t Succeed, Try Again: Court Grants Defendant’s Renewed Motion to Compel Arbitration After Finding Agency & Applicability of Terms to TCPA Claim

10 Apr 201910 Apr 2019

A motion to compel arbitration and stay proceedings is often a defendant’s best weapon in TCPA litigation. But is this strategy viable when a defendant is not a party or…

Class Actions

Message Received? Company Fails Again in Third Bid to Certify Solicited Fax Class Action

9 Apr 201910 Apr 2019

Enough already.As the Czar wrote recently, the FCC's disastrous solicited fax rule has finally been withdrawn. But that has not prevented the coils of fruitless TCPA class actions seeking to…

Uncategorized

Staring Down The Barrel: Court Relies On Little-Known Eleventh Circuit Rule To Dismiss TCPA Complaint As A Shotgun Pleading

5 Apr 2019

Although TCPA practice is inherently national, it’s important not to lose sight of quirky local rules. A pro se TCPA plaintiff learned that lesson the hard way when the Middle…

Uncategorized

Royal Certification: Court Throws Shade on Consent Evidence and Certifies Class against Cruise Company

5 Apr 20195 Apr 2019

How do you prove consent in a TCPA case? According to one recent decision, when consent is asserted to defeat class certification, a defendant must “actually produce evidence which shows…

Express Consent

Whose Consent Is It Anyway?: Court Recognizes Reasonable Reliance Defense in Denying Summary Judgment to Junk Fax Plaintiff

3 Apr 2019

Photo by rawpixel.com on Pexels.com Reassigned number liability remains shaky ground in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), with the D.C. Circuit vacating…

ATDS/Human Intervention…

Mucho Gracias! Northern District of Illinois Rejects Expansive Definition of Autodialer for Spanish Survey Texts

3 Apr 20194 Apr 2019

In the midst of chaos over the proper definition of the statutory term “automated telephone dialing system,” the Northern District of Illinois reminds us that the plain language of the…

Class Actions…

Meaningful Telemarketing Involvement: Court Holds Provider of Virtual Callback Numbers Is Potentially Liable for TCPA Violations

1 Apr 20192 Apr 2019

A telemarketer contracted with the operator of dialing equipment to send unwanted telemarketing calls to the plaintiff. That’s a common fact pattern, and it isn’t that unusual for a plaintiff…

FCC Action

Due Process Meets Agency Deference: TCPAWorld Analyzes The Supreme Court Argument In PDR Network v. Carlton & Harris Chiropractic.

26 Mar 201926 Mar 2019

The TCPA is caught in the middle of a tug-of-war of grand constitutional questions – due process, agency discretion, and jurisdictional limitations. The answer to these questions could have enormous…

Class Actions…

It’s a Long Way Down the Holiday Road – Court Certifies State (But Not Nationwide) Class Against Cruise Line in TCPA Case

26 Mar 201927 Mar 2019

Last week brought another decision from the Northern District of Illinois holding that Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), applies to class actions…

Uncategorized

The Impending California Consumer Protection Act: The Law’s Scope, Applicability, and Potential Impact

21 Mar 201926 Mar 2019

[Czar’s Note: TCPAWorld strives to be your one-stop shop for TCPA news and views. But occasionally, we like to invite other members of Squire Patton Boggs to blog on topics…

Uncategorized

Return To Sender: Court Holds TCPA Liability For A Text Sent By A Marketing Firm Cannot Be Resolved On Summary Judgment

21 Mar 2019

Federal courts continue to struggle to identify the “sender” of a fax for purposes of TCPA liability. The latest example is from the Southern District of New York. See Bais…

Not So Fast: District Court Rejects TCPA Plaintiff’s Attempt To Opt Out of Arbitration By Filing Suit

20 Mar 201926 Mar 2019

Many consumer finance agreements contain binding arbitration clauses, if not most. At least some of these agreements grant consumers the ability to opt out of the clause within a certain…

Uncategorized

First Things First: TCPA Defendant’s Attempt To Use Rule 11 To Dismiss A Case Denied As Premature

19 Mar 201920 Mar 2019

Baseless TCPA claims are frustrating. You know the claim has no merit. The client knows the claim has no merit. And you suspect that the plaintiff knows the claim has…

Uncategorized

Industry Responds: Twilio Founder On Eliminating Robocalls.

19 Mar 201920 Mar 2019

The founder of Twilio, Jeff Lawson, posted a well-written blog post on the need to eliminate true robocalls and what Twilio is doing about it. The post does not disclose…

Uncategorized

Robocall Fake News Spreads: More Media Outlets Push Out Misleading TCPA Articles

18 Mar 201920 Mar 2019

It was inevitable after John Oliver’s witty but highly misleading hit piece on the TCPA. Even after the Czar’s thorough rebuke of the John Oliver bit, mainstream media outlets have…

Uncategorized

That’s Purposeful Availment?: Sending Text To An Indiana Area Code Sufficient To Confer TCPA Personal Jurisdiction

15 Mar 201916 Mar 2019

The TCPAWorld personal jurisdiction hits keep coming.On Wednesday, we covered a decision from the Eastern District of Texas dismissing a case for lack of personal jurisdiction. Today we bring you…

Uncategorized

Yes, You Can Get Your Arbitration Agreement Enforced in the Eleventh Circuit (Probably)

14 Mar 201915 Mar 2019

A broad arbitration agreement, drafted with TCPA claims in mind, will be enforced – even in the Eleventh Circuit. In Fialek v. I.C. Sys.,2019 U.S. Dist. LEXIS 39770 (M.D. Fla.…

Federally-Backed Debt…

Content-Based Distinction In Action: District Court Grants Summary Judgment Under The TCPA’s Government-Backed Debt Exemption.

14 Mar 201914 Mar 2019

Yesterday, TCPA World covered recent First Amendment challenges to the TCPA. Today we bring you an example of the TCPA’s content-based discrimination in action. The Middle District of Florida recently…

Uncategorized

First Amendment Day At The Ninth Circuit: Court Hears Constitutional Challenge To The TCPA.

13 Mar 201913 Mar 2019

The Ninth Circuit recently held oral argument in a significant First Amendment challenge to the TCPA – Gallion v. Charter Communications. Although the case involves many issues that could prove…

Class Actions

Here’s Your Class, Now Go Find It: District of New Mexico Approves TCPA Class Notice Procedure That Demonstrates Why Certification Should Have Been Denied.

12 Mar 201913 Mar 2019

In the latest chapter of the Lavigne v. First Community Bancshares saga, the District of New Mexico approved a very broad notice plan based on the notoriously unreliable reverse-lookup method.…

Class Actions

Nothing Skinny About this $3MM Settlement: Jenny Craig Class TCPA Deal Receives Final Approval.

8 Mar 201912 Mar 2019

With an $840,000 fee award, class counsel in Bloom v. Jenny Craig should have no trouble paying for a gym membership. The Southern District of Florida gave final approval to…

FCC Action

Oyez! Oyez! Oyez! The U.S. Solicitor General Set to Argue in Closely-Watched PDR Network Petition

7 Mar 20198 Mar 2019

Chiropractic clinic, Carlton & Harris, has a friend in the U.S. Solicitor General. The Supreme Court has granted the Solicitor’s General request to appear as a friend of the court…

Officer/Director Liability

Thinly Veiled Liability: District Court Finds Pro-Se TCPA Plaintiff’s Attempt To Pierce The Corporate Veil Plausible.

6 Mar 20197 Mar 2019

As if the TCPA was not scary enough, a magistrate judge in the Southern District of Texas recently recommended allowing claims to pierce the corporate veil and hold individuals personally…

ATDS/Human Intervention…

Deference No More: What BNSF Railway v. Loos Teaches About Future Hobbs Act Challenges to FCC TCPA Orders And The Definition Of An ATDS.

6 Mar 20197 Mar 2019

At first blush, the Supreme Court’s recent decision in BNSF Railway v. Loos would seem to have little relevance to TCPA World. The case, after all, involves whether compensation paid…

Class Actions…

One Way Out?: District Court Grants TCPA Defendant’s Request To Pursue Individual Discovery And Motions Before Class Discovery.

5 Mar 20196 Mar 2019

The defendant in Katz v. Liberty Power Corp. faced a common dilemma: the prospect of expense class discovery even though the named plaintiff’s individual claims appear weak. See No. 18-cv-10506,…

Class Actions

Out of the Frying Pan: Plaintiff’s Certification Bid Goes from Bad to Worse When Reconsideration Papers Only Highlight More Sound Reasons to Deny Certification

4 Mar 20197 Mar 2019

Sometimes the best motion is the one you don’t file. One putative TCPA class representative found that lesson out the hard way. In Powell v. Youfit Health Clubs LLC, Case…

Uncategorized

Third Time’s the Charm?: Congress Considering HANGUP Act One Last Time

4 Mar 20195 Mar 2019

They're at it again. After the bill previously failed to muster the votes necessary to pass, Congressional Democrats--this time apparently working with Republicans--are looking to close the "loophole" authorizing calls…