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David Poell is a partner in the Business Trial Practice Group in the firm’s Chicago office, particularly focusing on the areas of consumer privacy and class action litigation.

In the recent case of Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) the Ninth Circuit broadly interpreted the TCPA’s definition of automatic telephone dialing system (often referred to as ATDS) to include devices with the capacity to dial stored numbers automatically. The device at issue in Marks is called the “Textmunication” system, which the Court described as “a web-based marketing platform designed to send promotional text messages to a list of stored telephone numbers.” The defendant, Crunch Fitness, had communicated with current and prospective gym members by sending them text messages via the Textmunication system. The plaintiff, Jordan Marks, had signed up for a gym membership and subsequently received three text messages over an 11-month period. Marks sued Crunch Fitness and alleged that the text messages violated the TCPA.  The district court granted summary judgment in favor of Crunch Fitness after concluding that the Textmunication system did not constitute an ATDS because it presently lacked a “random or sequential number generator” and did not have the potential to add this feature.
Continue Reading Ninth Circuit Opens Door for More Expansive Meaning of ATDS in TCPA Cases

In a victory for online retailers, a New York federal court recently dismissed three putative class action lawsuits brought on behalf of website visitors whose mouse clicks, keystrokes, and electronic communications were tracked by a third-party marketing company. The cases were filed against three e-commerce retailers—Casper (a mattress manufacturer and retailer), Tyrwhitt (a men’s clothing company), and Moosejaw (an active outdoor retailer)—and against a marketing company named NaviStone. NaviStone offers computer code that allows e-commerce retailers to determine the identities of consumers who visit their websites and track their online behavior. The plaintiff alleged that the code offered by NaviStone, and embedded in the retailers’ websites, functioned as an illegal wiretap enabling the retailers and NaviStone to “spy” on website visitors in real time as they browse. The lawsuits alleged violations under the federal Electronic Communications Privacy Act (ECPA), the federal Stored Communications Act (SCA), and New York General Business law (NYGBL).
Continue Reading New York Federal Court Dismisses Nationwide Class Action Arising Out of Alleged Spying by E-Commerce Retailers

A Texas court recently affirmed the vitality of potential nationwide class actions brought under the federal Driver’s Privacy Protection Act (“DPPA”), in a case brought by an individual whose personal information had allegedly been obtained illegally from the Texas DMV database. The case was filed by a local individual, Arthur Lopez, who complained of getting direct mail from Don Herring Ltd., a local Texas car dealer. Lopez claims that Herring’s personalized advertisement violated the DPPA. Here, the advertisement contained Lopez’s full name, address and the make model of his car. Lopez, however, alleged he had never heard of Herring and had no idea how Herring obtained his personal information without his consent.
Continue Reading Car Dealer’s Attempt to Crash Data Privacy Class Action Sputters Out

In the latest installment of what has become a quickening trend, a New York federal court recently dismissed another yet putative FACTA class action for lack of Article III standing. On her fourth (and final) attempt, the court in the case (Fullwood v. Wolfgang’s Steakhouse, Inc.) held the plaintiff once again failed to plead a concrete injury against a New York City steakhouse that provided her with a receipt displaying the full expiration date of her credit card in 2013.
Continue Reading New York Court Scraps Another FACTA Receipt Class Action for Lack of Standing

In Campbell-Ewald v. Gomez, 136 S. Ct. 663 (Jan. 20, 2016), the Supreme Court resolved a split among courts and held that an unaccepted settlement offer of complete individual relief does not moot the plaintiff’s lawsuit.  However, the Court expressly left open the question of “whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and then the court enters judgment for the plaintiff in that amount.”  136 S. Ct. at 672. 
Continue Reading Mooting Class Actions by Offer of Judgment – Episode 2: The Ninth Circuit Strikes Back

On January 20, 2016, in a highly anticipated decision (see October 27, 2015 blog) that will have implications for class action practice nationwide, the U.S. Supreme Court ruled that an unaccepted offer of judgment sufficient to completely satisfy an individual claim does not moot that claim or any class claim. The Supreme Court’s decision partially resolves a vigorously contested question of constitutional law that has been the subject of great dispute among federal Courts of Appeals for the last decade—whether a Rule 68 offer of judgment for complete relief deprives a court of Article III jurisdiction to hear only a “case or controversy.”  In a 6-3 decision, the Supreme Court held that a live case and controversy still exists when a plaintiff refuses to accept an offer of judgment.  In so holding, however, the Supreme Court suggested that it might reach a different decision if a defendant deposits funds sufficient to satisfy the plaintiff’s individual claims, and then obtains a judgment from the trial court in this amount.       
Continue Reading Not Taking “Yes” For An Answer: U.S. Supreme Court Rules That Unaccepted Offer Of Complete Individual Relief Does Not Moot Plaintiff’s Individual Or Class Action Claim

In Americana Art China Company, Inc. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243 (7th Cir. Feb. 18, 2014), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s attorneys’ fees award in a class action settlement arising from the defendant’s faxing of thousands of unsolicited advertisements in violation of the federal Telephone Consumer Protection Act.  In doing so, the Seventh Circuit reaffirmed the district court’s discretionary power to use the lodestar method, rather than the percentage method, to determine an appropriate fee award for class counsel.  The Seventh Circuit held that the lodestar methodology was properly applied and  permissible under the circumstances.
Continue Reading Seventh Circuit Affirms Lodestar Method to Determine Attorneys’ Fees in TCPA Class Action Settlement

The Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), prohibits “robo-calls” to cell phones, text messages and “junk” faxes without prior consent. It imposes statutory penalties from $500 to $1,500 per violation, regardless of any actual damage, and is thus increasingly popular with the plaintiffs’ class action bar. Though passed in 1991, there are relatively few Circuit Court of Appeals decisions regarding the TCPA. In August of 2013, however, both the Third and Seventh Circuits issued TCPA decisions—one involving the revocation of prior express consent and the other involving cy pres awards in TCPA class actions.
Continue Reading Third and Seventh Circuit Courts of Appeals Issue TCPA Decisions