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Class Actions

Court Stays Within the Four Corners–No Dismissal Despite Compelling Evidence of Consent

5 Apr 2021
As law students learn during their first civil procedure course, courts generally take factual allegations "as true."  This gives the plaintiff "a full opportunity to conduct discovery and thereby uncover…
Uncategorized

Justice Alito’s Concurrence in Facebook–Context Matters!

2 Apr 20212 Apr 2021
As my colleague (the Grand Duchess of the TCPAWorld) explains in an excellent post commenting on the Facebook v. Duguid decision--When in Doubt, Begin with the Text. She is, of course,…
Uncategorized

When in Doubt, Begin with the Text

1 Apr 2021
These days, it is not very often that we see a 9-0 decision from the U.S. Supreme Court.  But assuming the Court is not playing an April Fool’s joke, today…
Uncategorized

Repeat TCPA Litigant Loses Because Court Lacks Jurisdiction in the Lone Star State

29 Mar 2021
"Everything is bigger in Texas," is not true for specific jurisdiction.  For that, at least, Texas is no different.  A Texas court's exercise of jurisdiction must comport with "due process." …
Congressional Action

Court Confirms: No Private Right of Action for “Spoofing”

24 Mar 202125 Mar 2021
The TCPA's complex patchwork of statutes and regulations is brimming with private causes of action for the injured (or enterprising) plaintiff.  But not every violation provides a remedy, as a…
Uncategorized

7th Circuit Court of Appeals Rejects Insured’s Attempt to Use Broad Duty to Defend Standard to End Run Coverage Exclusions

17 Mar 2021
Zurich Am. Ins. Co. v. Ocwen Fin. Corp. (“Ocwen”), presents yet  another example of why companies facing potential robo-call liability need more than Commercial General Liability Coverage to protect them…
Uncategorized

Two Is Not Always Better Than One – Court Dismisses TCPA Class Action Under First-to-File Doctrine

16 Mar 2021
If you are a defendant in a TCPA class action and get hit with a second similar class action, don’t forget the often over-looked first-to-file doctrine.  Just last week, a…
Class Actions…

Junk Fax Class Action Survives Dismissal–Leaves Critical First Amendment Issues for Another Day

15 Mar 202115 Mar 2021
Sometimes what the Court does not address is the most interesting issue in an opinion.  That's the case we are covering today.  Scoma v. National Spine & Pain Centers, LLC,…
Uncategorized

A Sign Of Things To Come: CFPB Rescinds “Abusive” Guidance

12 Mar 202116 Mar 2021
Perhaps the most controversial aspect of the Richard Cordray-era CFPB was its use of UDAAP enforcement authority to punish companies for conduct that, until that time, no one new was…
ATDS/Human Intervention…

A Pyrrhic Victory? D. Mass Adopts Marks And Holds A Text Is A Call

12 Mar 202112 Mar 2021
In what could be a very short-lived victory for the plaintiff, the District of Massachusetts just adopted the Marks ATDS formulation and held that a text is a call. See…
Class Actions…

Pharmacy Obtains Dismissal of TCPA Class Under Emergency Exception For Communicating COVID-19 Procedures

8 Mar 202115 Mar 2021
The TCPA does not prohibit all calls or texts.  Among other exceptions, it carves out calls or texts made for an emergency purpose.  The FCC has determined that Congress intended…
Uncategorized

FACEBOOK WATCH 2021: No Ruling Today

8 Mar 2021
Today was another opinion day at the Supreme Court and likely the only one this week, but there was no ruling in Facebook v. Duguid. There was one opinion today,…
Class Actions

Venue Matters: California Court Rejects Plaintiff’s Attempt To Manufacture Venue And Dismisses Action Outright

8 Mar 20218 Mar 2021
In class action litigation – particularly TCPA class actions – procedural fights can be more important than substantive merits. And a recent decision from the Eastern District of California highlighted…
Uncategorized

FACEBOOK WATCH 2021: No Ruling Today

4 Mar 20215 Mar 2021
Today was an opinion day at the Supreme Court so we here at TCPAWorld were carefully watching the Court’s release of opinions this morning.  While we had two opinions today,…
ATDS/Predictive Dialer Cases…

Partial Win for Company Facing Nationwide ATDS Class Action: Court cannot Exercise Personal Jurisdiction Over Out-of-State Named Plaintiffs, but Arbitration Clause “Unconscionable” and ATDS Allegations Sufficient

2 Mar 2021
Facing a nationwide TCPA class action for calls allegedly made using an ATDS, DirecTV sought partial dismissal on multiple grounds:  (1) the lack of personal jurisdiction over certain named plaintiffs;…
Uncategorized

Tell it to the Arbitrator: Unconscionability Challenge to Arbitration Agreement for Arbitrator to Decide

22 Feb 2021
Last week, another federal court compelled arbitration in a TCPA case finding that pursuant to the arbitration agreement’s delegation clause, any claims that the arbitration agreement is unconscionable must be…
ATDS/Predictive Dialer Cases

No Summary Judgment on ATDS Allegations, Despite Glasser

16 Feb 202116 Feb 2021
As we've covered extensively, the Eleventh Circuit's ruling in Glasser provided a helpful victory for TCPA defendants facing ATDS claims.  The decision holds that the TCPA only applies to ATDS…
TCPA Discovery

TCPA Win! Calls made more than four years before case filed dismissed as untimely

8 Feb 2021
Today we report on a defense victory against a pro se TCPA plaintiff in Kentucky.  See Miller v. I.C. Sys., No. 1:19-CV-00102-GNS-HBB, 2021 U.S. Dist. LEXIS 214012 (D. Ken. Feb. 4,…
TCPA Discovery

Procedural Win! Another Court Bifurcates Discovery in a TCPA Class Action

22 Jan 2021
How best to secure the "just, speedy, and inexpensive determination of every action"?  A good place to start is with discovery. A recent decision from a District Court in Maryland…
Uncategorized

An Inconvenient Agreement: Forum Selection Clauses Will be Enforced

22 Jan 202122 Jan 2021
A recent TCPA order from the Middle District of Florida reminds litigants that a valid forum selection clause for disputes “arising out of or relating” to an agreement covers a…

TCPA Quick Hitter: Contract Requiring TCPA Compliance Not Enough to Escape TCPA Liability

16 Jan 202116 Jan 2021
"Do as I say, not as I do."  It doesn't work.  That's true for a recent TCPA decision denying a defendant's motion for summary judgment.  See Williams v. Pillpack LLC,…
Uncategorized

Is the Pendulum Swinging the Other Way?  Court Finds TCPA Claims Viable Prior to Severance of Government Backed Debt Exemption by Supreme Court

14 Jan 2021
As the Czar reported in late December (here), the plaintiffs’ bar had evened the score (3-3) with two recent decisions finding that the TCPA was constitutional as applied to calls…
Uncategorized

Court Dismisses Repeat Player’s 17-Count Complaint for Failure to State a Claim

11 Jan 2021
Sometimes more is just more.  In Worsham v. Disc. Power, 2021 U.S. Dist. LEXIS 1931 (D. Md. Jan. 6, 2021), plaintiff brought a 17-count complaint against defendant under the TCPA…
FCC Action

District Court in the Ninth Circuit Holds That Bureau-Level Decision Is Binding, Contradicting Fourth Circuit’s Decision on Remand in PDR

10 Jan 202110 Jan 2021
A Christmas Eve decision from the Northern District of California addressed an important and recurring issue in the TCPAWorld: Whether the Hobbs Act requires a district court to accept the…
ATDS/Human Intervention…

Out With The Old, In With The New: Archduke’s 2021 TCPA Predictions

4 Jan 20215 Jan 2021
Welcome to 2021, TCPAWorld. May it be slightly less terrible than 2020. And on that note, here are my predictions for the TCPA and calling regulations in 2021. 1) Increase…
ATDS/Predictive Dialer Cases…

Trouble in New Mexico for a Company and Its Officer

21 Dec 2020
In a decision with several important takeaways, the United States District Court for the District of New Mexico refused to dismiss a lawsuit filed by Robert Mestas against CHW Group…
ATDS/Human Intervention…

Archduke Live: Realtime, Unfiltered Coverage of The SCOTUS ATDS Argument

8 Dec 20209 Dec 2020
Editor’s Note: This is a live feed that will be updated continuously during the argument. If new content does not load, refresh or revisit the page for the latest updates. Earliest…
Class Actions

Michigan Court Refuses to Dismiss Fax Case on Pleadings Despite Agreeing that Fax Did not Describe Anything “Bought or Sold”

2 Dec 2020
The TCPA only prohibits "advertisements" sent using a fax machine.  So if a fax is not an advertisement, there is no liability. Simple, right? Not always.  In a nuanced and…
FCC Action

BREAKING: FCC Chairman Pai To Step Down January 20

30 Nov 20201 Dec 2020
FCC Chairman Ajit Pai just announced that he will step down effective January 20, 2021 – Inauguration Day. Chairman Pai’s current term as a commissioner was set to expire in…
Uncategorized

HUGE PENALTY FOR ILLEGAL SPOOFING: FCC Hits California Telemarketer with almost $10 Million Fine Over Spoofed Political Ad in California Primary

21 Nov 202024 Nov 2020
The election is over.  The fallout from the last one isn’t. The FCC recently issued a nearly $10,000,000 fine against San Diego telemarketer Kenneth Moser, dba Marketing Support Systems.  In…
TCPA Discovery

Undue Burden! Another Court Denies Motion to Compel Burdensome Production

30 Oct 2020
As we've covered , discovery in TCPA cases requires a careful, thoughtful approach.  That is true for Plaintiffs too, as  counsel for Ronald Chinitz recently learned. See Chinitz v. Realogy…
TCPA Discovery

Sanctions for Spoliation in Nevada

28 Oct 2020
If you are not careful to preserve and obtain responsive documents, TCPA litigation can quickly devolve into a (losing) discovery battle.  In Perrong v. Sperian Energy Corp., the Defendant, ECG,…
Class Actions…

Ignoring TCPA Class Action is a BAD Strategy

6 Oct 20206 Oct 2020
We get it. TCPA class actions cause headaches, or worse. Courts agree. The Eleventh Circuit recently described the in terrorem character of the TCPA class action, observing the "pressure to…

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