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In Telephone Consumer Protection Act (“TCPA”) autodialer cases, it is important for defendants to put plaintiffs to their evidentiary burden of proving that an autodialer actually was used.  As one recent case discussed below demonstrates, being active on this front and keeping records showing how a company lawfully engages in telemarketing can save time and money in potential litigation. We have blogged previously about TCPA autodialers cases (here, here, and here).

At the end of December 2015, in Norman v. Allianceone Receivables Mgmt., Inc., No. 15-1780 (7th Cir.), the Court of Appeals for the Seventh Circuit upheld a lower court’s award of summary judgment in favor of the defendant company in a TCPA autodialer lawsuit. The plaintiff alleged that the defendant company used an autodialer to place an uninvited telemarketing call to his home; the defendant company insisted, however, that no autodialers were used. 
Continue Reading Pause, Clicking, and Dead Air – TCPA Autodialers as a Story about Nothing

Imagine a situation where a person purchases a $74,999 foreign car without test-driving it first, only to receive it and find that the engine is missing, rendering the car nearly valueless.  Now also imagine a person who answers a call on her cell phone, hears a prerecorded message offering her a free vacation package opportunity, and hangs up a few seconds later.  Right now, only one of these people can file a suit in federal court but it’s not the guy who bought the car.

The United States Supreme Court heard oral arguments in Spokeo Inc. v. Robins, No. 13-1339 earlier this month, a case with huge implications for Telephone Consumer Protection Act (“TCPA”) actions and other claims based on laws providing for statutory damages.  The question before the Court is simple: can Congress give a plaintiff who suffers no concrete harm Article III standing by authorizing a private right of action based on a bare violation of a federal statute that provides for statutory damages, such as the TCPA, Fair Debt Collection Practices Act (“FDCPA”), or Fair Credit Reporting Act (“FCRA”).Continue Reading Will Plaintiffs Have a Leg to Stand On?: The Supreme Court Considers Whether Statutory Damages Constitute Article III Standing

On October 27, 2015, the Missouri Attorney General filed a lawsuit against two telemarketing companies that solicit donations on behalf of charitable organizations in the state, and against the companies’ co-owners.  Regular readers of this blog know that these have been very eventful times for telemarketers, as the U.S. Supreme Court considers the breadth of relief to which a plaintiff is entitled under the Telephone Consumer Protection Act (“TCPA”), other federal courts opine on the definition of an “autodialer,” and the Federal Communications Commission releases consumer complaint data weekly.

Missouri’s action is not simply an example of piling-on: it is a stark reminder that telemarketers who work for nonprofit organizations must still comply with many of the TCPA’s provisions (as well as those of the TCPA’s cousin, the Telemarketing Sales Rule (TSR)).  Some businesses that operate in the nonprofit sector – particularly the charity sector – believe that laws impacting the commercial industry do not similarly apply to them; this can be a costly mistake. 
Continue Reading “Show Me” State Shows No Mercy: Missouri AG Files Suit Against Charity Telemarketers

The Supreme Court wrestled with a thorny question on October 14, 2015 when it heard oral argument in Campbell-Ewald Co. v. Gomez, a case that we previewed previously.  The transcript of the oral argument is available here.

The facts in Campbell-Ewald are straightforward.  The plaintiff sued Campbell-Ewald, a U.S. Navy contractor hired to provide “multimedia recruiting campaign” services, under the Telephone Consumer Protection Act (“TCPA”) after he received an unsolicited text message from Campbell-Ewald in 2006.  Campbell-Ewald admitted fault and, pursuant to Fed. R. Civ. P. 68, offered a full settlement of $1,503 to the plaintiff, slightly more than three times the maximum award allowed under the TCPA.  But, there is a wrinkle – the plaintiff refused the offer of judgment.  That brings us to the Supreme Court, which is considering the following question: “Does a case become moot when a plaintiff receives an offer of complete relief for his claim?”Continue Reading Do You Have to Take “Yes” for an Answer? The Supreme Court Takes Another Look at Mootness Following an Offer of Judgment in TCPA Class Litigation

Last month, we blogged about the U.S. District Court for Northern District of California’s recent decision entered in Luna v. Shac, LLC, — F. Supp. 3d –, No. 14-cv-00607 (N.D. Cal. Aug. 19, 2015), which awarded summary judgment to the defendant-gentleman’s club in a Telephone Consumer Protection Act (“TCPA”) class action.  You can read that post here.  In short, the court held that the defendant’s dialing/texting platform did not constitute a prohibited autodialer under the TCPA in the wake of the FCC’s July 2015 omnibus TCPA Order – i.e., (1) adding numbers to a database (either by manually typing the phone numbers, or by uploading or cutting-and-pasting from an existing list of number); (2) drafting the content of the text messages for each campaign; and (3) selecting the numbers to call and clicking “send” (one-click) to transmit the messages–because of the level of human intervention in dialing. Notably, summary judgment briefing in Luna wrapped up before the FCC Order was released, but the plaintiff noticed the Order as supplemental authority in opposition to the defendant’s motion for summary judgment. The defendant responded explaining why the FCC Order did not pose an obstacle to summary judgment.  The court also cited the Order in its decision.
Continue Reading Postscript to Luna v. Shac LLC: Human Intervention Still Precludes Finding That Strip Club’s Dialing Platform Constitutes an Autodialer Under the TCPA

By charlieanders2 [CC BY-SA 2.0 via flickr]
By charlieanders2 [CC BY-SA 2.0 via flickr]
In the most recent installment of the Batman movie franchise, The Dark Knight Rises, Anne Hathaway’s character, Selina Kyle, whispers ominously into Bruce Wayne’s ear, “There’s a storm coming, Mr. Wayne.  You and your friends better batten down the hatches . .…

In a big win for Yahoo!, the U.S. District Court for the Southern District of California denied certification of a putative class in a suit alleging that Yahoo! violated the Telephone Consumer Protection Act (“TCPA”).  The litigation arose out of claims that Yahoo! spam-texted consumers by allowing its users to send text messages from a computer to a mobile phone.  In order to send a text message via Yahoo! Messenger, the user must either select the recipient’s name from the user’s Yahoo! contact list or manually input the recipient’s mobile number in the Messenger window.  Yahoo!, then, automatically checks to see if anyone has used its Messenger service to send a message to that mobile number.  If not, Yahoo! sends a “Welcome Message” to the recipient providing a general explanation of the feature.  Yahoo! users agree to the terms of service, and over the years some of these terms of service have included consent for Yahoo! to send text messages.  The plaintiffs claimed that the “Welcome Message” violates the TCPA prohibition on sending automated text messages through an “automatic telephone dialing system” without the recipient’s consent.
Continue Reading Yahoo! Says Yahoo! In Defeating Class Certification in TCPA Texting Case

On August 19, 2015, in Luna v. SHAC, LLC, No. 5:14-cv-00607 (N.D. Cal.), the Northern District of California issued one of the first decisions interpreting the Telephone Consumer Protection Act’s (“TCPA”) definition of “automatic telephone dialing system” (i.e., autodialer) following the FCC’s July 2015 omnibus TCPA order.  Luna may serve as guidepost for future litigants, as the key to the court’s decision lies in the degree of human involvement in the call making process.

In Luna, the defendant-gentleman’s club engaged a third-party mobile marketing company to provide a web-based platform for sending promotional text messages to its customers.  The process to send the text messages through the web-based platform involved multiple steps, all of which required human involvement.  First, an employee would input telephone numbers into the platform manually, or by uploading or cutting and pasting an existing list of phone numbers.  Next, the employee would log in to the platform to draft the message content.  The employee, then, would designate specific phone numbers to which the message would be sent.  Finally, the employee would click “send” on the website to transmit the message to the defendant’s customers.  The messages could be transmitted in real time or as prescheduled messages sent at a future date. 
Continue Reading Court Holds That Human Intervention Covers Strip Club From Liability in TCPA Autodialer Class Action

While plaintiffs’ attorneys seek to streamline the filing of class actions under the Telephone Consumer Protection Act (“TCPA”), a recent court decision serves as a reminder that there are clear limits to a plaintiffs’ ability to recover statutory damages under a theory of vicarious liability. On May 18, 2015, the U.S. District Court for the Central District of California awarded summary judgment to defendant UTC Fire & Security Americas Corporation, Inc. (“UTC”), finding the security equipment manufacturer could not be held vicariously liable for the actions of its authorized dealers under any theory of agency. The decision marks a win for companies that operate using a dealer or retailer network to distribute their products, in a legal area that is a noted favorite of class action lawyers, and provides an example for how companies may avoid vicarious liability under the TCPA by carefully structuring the way in which they authorize resellers to use and advertise their product.
Continue Reading Security Equipment Manufacturer Secure in Its TCPA Defense: Court Finds Company Not Vicariously Liable for Authorized Dealer’s Alleged TCPA Violations

The Supreme Court will decide whether a defendant can “pick off” the named plaintiff in a Telephone Consumer Protection Act (TCPA) class action – and moot the putative class claims – by making a Rule 68 offer of judgment before the putative class representative files a motion for class certification.  Thus, the Supreme Court could streamline putative class actions by eliminating the need for plaintiffs to file “protective” motions for class certification at the same time they file their complaints.  The case, Gomez v. Campbell-Ewald Co., also involves important vicarious liability issues that litigants routinely address in TCPA class actions.

In Gomez v. Campbell-Ewald Co., the defendant marketing consultant allegedly arranged to send the plaintiff unsolicited text messages in violation of the TCPA through a third-party caller called Mindmatics, purporting to recruit for the U.S. Navy.  Before the plaintiff filed a motion for class certification, Campbell-Ewald offered to pay the plaintiff $1,503.00 per violation, in full satisfaction of the plaintiff’s claims.  The plaintiff allowed the offer to lapse and sought class certification.  Campbell-Ewald argued to the United States District Court for the Central District of California and then to the Ninth Circuit that its Rule 68 offer of judgment mooted the plaintiff’s individual and putative class claims.  The Ninth Circuit disagreed with the defendant, aligning the decision with other circuits which have also held that a rejected Rule 68 offer does not moot claims if the offer is made prior to filing or, or ruling on, a motion for class certification.   The Seventh Circuit, in contrast, held in Damasco v. Clearwire Corp. that a Rule 68 offer made before the plaintiff had filed a motion for class certification mooted the class claims. 
Continue Reading TCPA “Pick Off” Play – Supreme Court to Consider whether a Settlement Offer to Named Plaintiff Moots Class Action