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
Uncategorized
European Cybersecurity Directive One Step Closer
On March 13, 2014, the European Parliament voted to approve the draft Network and Information Security Directive (as known as the Cybersecurity Directive), which contains new rules designed to improve…
Continue Reading European Cybersecurity Directive One Step Closer
Roadmap For Cybersecurity
The White House introduced a voluntary cybersecurity framework that would have banks, utilities, and other critical industries adopt best practices to protect against security threats. The National Institute of Standards…
Continue Reading Roadmap For Cybersecurity
California AG Settlement Breach Notification Claim
California Attorney General Kamal Harris recently settled claims against Kaiser Permanente under California’s Unfair Competition Law, Cal. Bus. & Prof. Code 17200, alleging that Kaiser waited too long to notify…
Continue Reading California AG Settlement Breach Notification Claim
TCPA Class Actions Coming To New York
A recent decision by the U.S. Court of Appeals for the Second Circuit may lead to a wave of class action litigation in New York under the Telephone Consumer Protection Act (“TCPA”). See Bank v. Independence Energy Grp. LLC, No. 13-1746-cv (2d Cir. Dec. 3, 2013).
Continue Reading TCPA Class Actions Coming To New York
New FCC Interpretation Of “Express Consent” To Increase TCPA Class Action Liability
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
The Ninth Circuit Holds That The TCPA Prohibits Automated Calls Even When They Do Not Refer To Any Specific Good Or Service
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