targeted moneyAs previously discussed on this blog, the Telephone Consumer Protection Act (TCPA) prohibits “telephone solicitations” to numbers listed on the National Do-Not-Call list (NDNC). There is a rarely litigated exception to the TCPA’s do-not-call provisions, however, for calls placed by or on behalf of tax-exempt, nonprofit organizations. On October 11, 2017, in Spiegel v. Reynolds, No. 1:15-cv-08504 (N.D. Ill.), a putative nationwide class action, the U.S. District Court for the Northern District of Illinois held both that (1) the TCPA’s nonprofit exemption from do-not-call liability extends to a professional fundraiser acting on behalf of the nonprofit under federal common law agency principles – even if the majority of the money raised for the nonprofit is paid to the fundraiser; and (2) calls seeking charitable donations are not “telephone solicitations” actionable under the TCPA, even if the donations will be – in part – used to procure goods for charitable recipients.

In Spiegel, the plaintiff claimed that several fundraising calls were placed to his residential telephone number in 2013 and 2014, while his number was on the NDNC list. He sued the principals of the charity, The Breast Cancer Society (Society), as well as the Society’s paid fundraiser, Associated Community Services, Inc. (ACS), alleging that such fundraising calls to him and other United States residents violated the TCPA.

Continue Reading In Landmark Decision, Court Defines the Contours of the Tax-Exempt Nonprofit Exception to the TCPA

orange splashJoining a growing trend in federal court jurisprudence, the U.S. District Court for the Central District of California dismissed a class action complaint because it found that the Mott’s fruit snacks at issue did not affirmatively misrepresent their contents. In short, the court held that Mott’s fruit snacks’ labels could not deceive consumers because they were literally true.

The plaintiff in the Mott’s case asserted allegations similar to claims that had successfully withstood motions to dismiss in the past. He alleged that the fruit snacks’ use of phrases like “made with real fruit and vegetable juice” misled consumers to believe the products contained more fruits and vegetables than they did, and representations like “100% of your daily value of Vitamin C” falsely conveyed to consumers that the products were healthful and nutritious. Based on these allegations, the plaintiff brought consumer protection claims and related common law claims on behalf of himself and all California consumers who purchased Mott’s fruit snacks.

Continue Reading The Tide Is Slowly Turning Against Food Labeling False Advertising Claims That Do Not Involve Affirmative Misrepresentations

James Bond Goes to CourtJames Bond is best known for the cars, the adventures, the spy gadgets, and the villains he (generally) defeats by the end of the movie. And, like most big-screen heroes, James Bond is only as good as the unique adversaries, from men with golden guns to odd fellows, he faces in the 26 24 all the franchise’s movies. One particular adversary however, Mary Johnson, a self-described Bond fan, may be James Bond’s biggest rival to date.

In April, Johnson filed a class action suit in Washington State against several entertainment companies that own the rights to the James Bond franchise, including MGM Holdings, Inc. and 20th Century Fox Home Entertainment. Johnson claims that she and other members of the class purchased two James Bond DVD boxed sets that promise: “[ALL] the Bond films gathered together for the first time in this one-of-a-kind boxed set – every gorgeous girl, nefarious villain and charismatic star from Sean Connery, the legendary actor who started it all, to Daniel Craig.” (Emphasis Added). The problem is that the sets don’t include 1967s Casino Royale or 1983s Never Say Never Again films. Some Bond connoisseurs would argue that the two excluded films are not part of the franchise because Casino Royale was a spoof produced by a different movie studio and Never Say Never Again was the result of a complicated rights dispute between MGM and the movie’s writer, Kevin McClory. Nevertheless Johnson claims, the fact that the box sets don’t include literally “all” of the franchise’s movies, the use of the word is deceptive and therefore constitutes a violation of Washington’s Consumer Protection Act. Johnson seeks class certification, an award of damages, including punitive damages, and court costs and attorneys’ fees.

Continue Reading Fan Was Expecting Goldfinger, but Instead Got Oddjob: Woman Sues Movie Studios over James Bond Movie Collection

texting lawsBreaking up can be messy, whether you are the one doing the breaking up or the one being broken up with. And, we all know about the different ways to break up with someone. “It’s not you, it’s me . . .”, “I need space . . .”, “I’m washing my hair that year . . .” However, when it comes to the proper way of breaking up with a telemarketer over text message, a New Jersey federal court is primed to shed some light on the issue.

On January 12, 2017 plaintiff Amy Viggiano filed a class action lawsuit (Viggiano v. Kohl’s Dep’t Stores, Inc., No. 3:17-cv-00243 (D.N.J.), alleging that Kohl’s violated the Telephone Consumer Protection Act (TCPA) by sending unwanted text messages and requiring consumers to respond “STOP” to the texts to cancel them. Specifically, the complaint alleges that Kohl’s “sent millions of text messages to consumers after purporting to designate the exclusive means by which consumers may withdraw consent to receive such messages.” There generally can be no violation of the TCPA if the consumer has consented to receive marketing calls or text messages – at least absent a subsequent request to the sender to stop sending them. The Federal Communications Commission (FCC) has ruled that consumers have the right to revoke such consent by using any reasonable method, including orally or in writing. The issue in this case turns on whether, after the plaintiff unequivocally consented to receive marketing text messages from Kohl’s, she reasonably broke up with Kohl’s.

Continue Reading “It’s Over, Stop Texting Me”: Class Action Suit Against Kohl’s Alleges TCPA Violations

sunshineThe coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California.

In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”

Continue Reading Springtime for Food Marketers? Two Big Wins in California in Recent Days

package deliveryThe plaintiffs’ bar is at it again, this time with a new target—the shipping and handling fees that retailers charge consumers in the course of delivering a product.

We may think in the day of Amazon Prime that when we shop on the web the product should arrive at our door for free. But there are obviously costs associated with mailing the items we buy online, costs that don’t exist when we pick up in store. E-Sellers have always understood the need to make these shipping and handling costs—as well as other terms and conditions of sale—clear and conspicuous to the customer before he buys the product. Similarly, e-Sellers understand when they advertise a product as “free” or as a “free trial” that charging additional fees such as shipping and handling, unless very clearly communicated, can pique the interest of state enforcers. The current class action attack on retailers focuses not on how clearly such charges are communicated but instead on the amounts charged and whether it is somehow unfair to charge more than the actual out-of-pocket shipping and handling cost, even if the charges are adequately disclosed.

Continue Reading Retailers Confront a New Threat: Shipping and Handling Class Actions

telephoneUnder the Telephone Consumer Protection Act (TCPA), businesses generally may not place an autodialed telemarketing call or a telemarketing call that delivers a pre-recorded message unless the recipient has provided his or her prior express consent to receive such a call. Recently, the Sixth and Ninth Circuits ruled on whether a business may place a telemarketing call or send a telemarketing text message to a prior customer. Specifically, the courts weighed in on whether a business may continue to send such telemarketing communications under the TCPA when the agreement governing the parties’ relationship, through which prior express consent was obtained, is terminated or has expired. These decisions further muddy the water in a legal area that is already murky at best.
Continue Reading ‘Til Contract Termination Do We Part: Circuit Courts Reach Differing Conclusions on Whether TCPA Consent Survives the Termination or Expiration of a Contract

orange splashWhen courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc.

Last week, however, the Ninth Circuit Court of Appeals, which had previously opted to wait for FDA guidance with respect to evaporated cane juice, decided there was no need to wait for FDA to provide further guidance on “natural” claims in Brazil vs. Dole. In 2013, the lower court had granted in part, and denied in part, Dole’s motion to dismiss or strike the first amended complaint. (More about the significance of the 2013 date below.) The Ninth Circuit found that a decision not to stay or dismiss the case under the doctrine of primary jurisdiction was not an abuse of discretion.

Continue Reading Ninth Circuit Decides Not To Stay Natural Case, But Read the Fine Print

Caribbean Cruise Line Settlement

(Revised 10/13)

A Telephone Consumer Protection Act (“TCPA”) class action litigation, Birchmeier, et al. v. Caribbean Cruise Line Inc., et al., No. 1:12-cv-04069 (N.D. Ill.), has been winding its way through the court system for four years and finally settled this month. Caribbean Cruise Line and its co-defendants, who were sued for violating the TCPA by allegedly robocalling millions of individuals with offers for free cruise trips, will now pay between $56 million and $76 million, to settle claims of the approximately one million person class who received such calls from the defendants in 2011 and 2012, after the Northern District of Illinois certified several classes, granted partial summary judgment to the plaintiffs, and denied the defendants’ motions to decertify the class and for summary judgment in their own right. Individual class member recovery will be based on the number of valid claims submitted, with each class member being entitled to $500 for each call received (with a rebuttable presumption that each class member received three calls) but subject to reduction pro rata if the total payments exceed $76 million, after the costs of administration, incentive awards to the four class representatives ($10,000 each), and any award of attorneys’ fees (at most $24.5 million) are factored in. (should total payments at $500 per call (plus administration costs, incentive awards, and attorneys’ fees) be less than the $56 million settlement floor, each class member may receive a pro rata payment of more than $500 per call up to a maximum of $1,500 per call.) If the settlement is approved and Caribbean Cruise Line ultimately ends up paying the $76 million, then, as the plaintiffs’ attorneys noted in their motion for preliminary approval, the settlement “promises to go down as the largest settlement in TCPA history.”

Continue Reading Why the Caribbean Cruise Line Record-Breaking TCPA Settlement Could Contribute to “The End of the [TCPA] World As We Know It” (and We Feel Fine)

Recently, there have been numerous cases dismissed because plaintiffs have treated the Telephone Consumer Protection Act (TCPA) like a business opportunity rather than as a consumer protection statute. Courts also have had to step in over the past several months to reign in plaintiffs’ counsel when it comes to their attorneys’ fees. Such is the case in a recent Seventh Circuit decision, where the court held that the TCPA does not shift attorneys’ fees or create common funds.

The TCPA provides $500 in statutory damages for each violation of the statute (or $1,500 per willful violation). The $500 cap includes both the damages to the plaintiff as well as attorneys’ fees. In Ira Holtzman, C.P.A., & Assocs. Ltd. v. Turza, Nos. 15-2164 & 15-2256, 2016 U.S. App. LEXIS 12594 (7th Cir. July 8, 2016), the court reversed an order that would have resulted in payments of more than $500 per violation plus attorneys’ fees.

Continue Reading $500 is the Max – The TCPA is Not a Fee Shifting Statute