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As we reported in our sister blog, “One ‘Chirp, Buzz, Or Blink’ Is Not Enough To Sue Under the TCPA”, a recent court decision makes it more difficult for plaintiffs to establish standing under the Telephone Consumer Protection Act. In its decision, the Eleventh Circuit ruled that a single text message from an attorney to his former client did not amount to sufficient harm to sue in federal court. The Court concluded that the allegations regarding the single text message were not enough to state a concrete injury-in-fact necessary for federal jurisdiction. The Eleventh Circuit’s ruling appears to conflict with a previous Ninth Circuit decision regarding the same issue.
Continue Reading A Single Text Message May Not Violate TCPA

The Sixth Circuit is the latest court to weigh in on the definition of ATDS under TCPA. The TCPA defines ATDS as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” Generally, the TCPA prohibits calls and text messages to cell phones using an ATDS without prior express consent.
Continue Reading Will More Clarity on Definition of ATDS Under TCPA Finally Be Here Soon?

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

For years, litigants have battled over whether a defendant’s offer of judgment, which completely satisfies the plaintiff’s individual claim, can moot a class action. In Campbell-Ewald v. Gomez, 136 S. Ct. 663 (2016), the U.S. Supreme Court recently held that no case is mooted when a plaintiff refuses to accept an offer of judgment.  The Supreme Court, however, left open the question of what happens when a defendant follows through with its offer by tendering complete individual relief, depositing the monetary relief with the court, and moving for entry of judgment.
Continue Reading Mooting Plaintiff’s Class Action Even After Plaintiff Refuses An Offer Of Judgment

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 Osorio v. State Farm Bank, F.S.B., No. 13-10951, 2014 U.S. App. LEXIS 5709 (11th Cir. Mar. 28, 2014), the U.S. Court of Appeals for the Eleventh Circuit has provided some guidance on the parameters of “prior express consent” under the Telephone Consumer Protection Act (“TCPA”).  In particular, the court held: (1) consent can be given on behalf of another person if an agency relationship exists and (2) a party may orally revoke consent.
Continue Reading The Eleventh Circuit Interprets Prior Express Consent Under The TCPA

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

Plaintiffs frequently sue businesses in class actions for violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The TCPA generally prohibits calls and text messages to cell phones using automated systems or artificial or pre-recorded voice unless the consumer gives “prior express consent.” The TCPA imposes statutory penalties of $500 per negligent violation, and up to $1,500 per knowing or willful violation. In class actions, the potential liability usually extends back four years prior to the filing of the complaint. The numbers can get very high, very quickly—for example, at least $500,000 for 1000 calls; at least $5 million for 10,000 calls, etc. Though the TCPA does not authorize attorneys’ fees itself, plaintiffs usually recover them in class actions.
Continue Reading New FCC Interpretation Of “Express Consent” To Increase TCPA Class Action Liability

In Chesbro v. Best Buy Stores, LP, No. 11-35784, 2012 WL 4902839 (9th Cir. Oct. 17, 2012), the Ninth Circuit reversed the Western District of Washington’s grant of summary judgment in favor of Best Buy Stores, LP (“Best Buy”) on claims that Best Buy placed automated telephone calls to plaintiff Michael Chesbro’s home in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 and Washington statutes. The TCPA prohibits “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.” However, the FCC has exempted automated calls that do not adversely affect the consumer’s privacy rights and do not include any “unsolicited advertisement,” pursuant to 47 U.S.C. § 227(b)(2)(B)(ii) and 47 C.F.R. § 64.1200(a)(2)(iii). An “unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(5). Here, the Ninth Circuit rejected Best Buy’s argument that its automated calls to Chesbro were not “unsolicited advertisement[s],” holding that such calls need not explicitly mention a good, product, or service, but can nonetheless violate the TCPA if they encourage the listener to make future purchases.
Continue Reading The Ninth Circuit Holds That The TCPA Prohibits Automated Calls Even When They Do Not Refer To Any Specific Good Or Service