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For years, lead generators have obtained telephone numbers for their clients to call by obtaining the consumer’s consent to receive calls from certain entities specifically identified by the lead generator. A typical model uses language that asks for the consumer’s consent, via a checkbox or otherwise, to receive marketing calls from a few of the lead generator’s marketing partners named in the consent request.

A popular variation of this model is to include, instead of a list of partners by name, a clickable reference to “marketing partners” in the consent language. The specific marketing partners are visible only when the consumer clicks the link and views whatever list of marketing partner names the lead generator has provided.

Sometimes, the marketing partners list has several dozens, hundreds, or thousands of names.  With such long lists, one might ask: How many names on the marketing partners list is too many to evidence meaningful consent by the consumer to receive calls or texts? As recently declared by the Federal Communications Commission (FCC), the answer is 5,329.  As a practical matter, the number might be a whole lot less.…

Continue Reading Telemarketing Lead Generators: How Many “Marketing Partners” Is Too Many?

On December 27, 2022, the Federal Communications Commission (FCC) released an Order on Reconsideration and Declaratory Ruling clarifying the express consent requirements for calls placed to residential landlines under the Telephone Consumer Protection Act (TCPA) and the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act).

First, a little background: The TCPA restricts a caller’s ability to place telephone calls to a residential landline using artificial or prerecorded voice messages without the prior express consent of the called party, unless exempted by statute or FCC rule or order.…

Continue Reading FCC Clarifies Express Written Consent Requirement for Exempt Callers under TCPA and TRACED Act

For those embroiled in Telephone Consumer Protection Act (TCPA) class action litigation, the sum of the damages may not necessarily equal the whole.

In Wakefield v. ViSalus, Inc., the plaintiff and certified nationwide class obtained a jury verdict that defendant made 1,850,440 prerecorded message calls without the then-heightened prior express consent to make such calls. Because the TCPA’s minimum statutory damages are $500 per unlawful prerecorded message call, the damages award was a whopping $925,220,000.

After trial, ViSalus challenged, among other things, the damages award as unconstitutionally excessive. Specifically, ViSalus did not argue that the TCPA’s $500 per violation statutory penalty is unconstitutional in a vacuum, but, rather, that the “aggregate award” is so “severe and oppressive” that it violated ViSalus’s due process rights. Last Thursday, the Ninth Circuit agreed.…

Continue Reading Ninth Circuit Rules That TCPA Aggregated Statutory Damages Might Be Unconstitutionally Punitive

Last week, the Federal Trade Commission turned its attention to the mortgage relief industry once again. In its most recent enforcement action, the FTC joined forces for the first time with the California Department of Financial Protection and Innovation (DFPI).

On September 12, 2022, the agencies jointly filed a complaint in the U.S. District Court for the Central District of California against several companies alleged to have operated a mortgage relief scam. Two days later, the court issued a temporary restraining order (TRO) appointing a receiver and freezing the defendants’ assets until the parties can be heard on whether to issue a preliminary injunction.

The defendants consist of various corporate entities doing business as Home Matters USA, Academy Home Services, Atlantic Pacific Service Group, and Golden Home Services America, and two individual defendants who own the companies.…

Continue Reading FTC Joins with California DFPI to Obtain Asset Freeze Against Mortgage Relief Business

Last week, courts issued two new Florida Telephone Solicitation Act (FTSA) decisions. We’ve been covering the sprawl of FTSA cases filed since the statute was amended to allow for a private cause of action in July 2021. Both of last week’s decisions were on motions to dismiss.

First, on September 13, 2022, the Middle District of Florida gave FTSA defendants their first win in Davis v. Coast Dental Services, LLC. There, the plaintiff, using a form complaint that her attorneys often use in other FTSA cases, alleged that the defendant used a “computer software system that automatically selected and dialed” her telephone and sent a single marketing message to her (from a ten-digit phone number) about its dental services without her prior express written consent.…

Continue Reading FTSA Dismissal Decisions Update: One Win, One New Loss

Last week, the plaintiff in Alvarez v. Sunshine Life & Health Advisors LLC — the first Florida Telephone Solicitation Act (FTSA) action to settle on a class basis — filed his motion for preliminary approval of the settlement. And the settlement is an interesting one. The settlement provides that the defendant will make available $2,556,000 as part of a common fund from which the following amounts will be paid:

  1. Each settlement class member who submits a valid claim form will receive a check in the amount of $300;
  2. An incentive award to the plaintiff in the amount of $5,000 for his service as the putative class representative;
  3. Attorneys’ fees and costs totaling 20% (or $511,200) of the common fund; and
  4. The costs of settlement notice and administration.

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Continue Reading About That First Florida Telephone Solicitation Act Class Action Settlement…

Several years ago, in Salcedo v. Hanna, the Eleventh Circuit held that the receipt of a single allegedly unsolicited, autodialed text message was not a concrete enough injury-in-fact to establish Article III standing for a plaintiff under the federal Telephone Consumer Protection Act (TCPA). We covered that decision here. Since then, the Salcedo court’s reasoning has been applied by Florida district courts in cases involving five text messages, the receipt of ringless voicemails, and unanswered prerecorded message calls.

At the Florida state court level, however, the issue of whether the mere receipt of an unsolicited, autodialed text message or call (or even several) without any attendant harm is enough to satisfy standing under the Florida Telephone Solicitation Act (FTSA) is unsettled. This past March, in Alvarez v. Sunshine Life & Health Advisors LLC, a judge in the Miami-Dade County Circuit Court held that, under Florida law, the receipt of two purportedly unsolicited, autodialed text messages was enough to support the plaintiff’s standing to bring an FTSA claim. That judge found that an alleged legal injury—the simple violation of the FTSA—without any attendant actual harm or damages is enough to give plaintiffs a ticket into state court because Florida courts do not follow the same standing analysis as federal courts do under Article III.…

Continue Reading How a Recent FACTA Decision Impacts the Florida Telephone Solicitation Act’s Standing Analysis

Everyone remember that Alvarez v. Sunshine Life & Health Advisors LLC putative Florida Telephone Solicitation Act (FTSA) litigation we’ve covered? You know, the one where the plaintiff’s counsel argued that the FTSA extends to text messages, whereas its federal counterpart, the Telephone Consumer Protection Act (TCPA), “doesn’t even regulate text messages”?  It’s the case where…

As readers of this blog know, several states recently amended (or attempted to amend) their telemarketing laws, especially as they relate to regulating autodialers. While they don’t affect autodialing, telemarketers should take notice of the amendments to Washington state’s telemarketing statutes (available here), which go into effect June 9. And both houses of the New York General Assembly have passed a bill amending its Do Not Call Law (although it has not yet been signed by the governor).

About a week ago, Oklahoma passed its Telephone Solicitation Act of 2022, which goes into effect at the beginning of November. The Oklahoma law is patterned after the Florida Telephone Solicitation Act (FTSA), which was amended in July 2021 to allow for a private right of action. After the July 2021 FTSA amendments went into effect, hundreds of class actions were filed alleging violations of Florida’s law, prompting the Florida legislature to volley about several additional proposed amendments earlier this year. However, in March 2022, at the end of the legislative session, the various proposed FTSA amendments were “indefinitely postponed and withdrawn from consideration.” At least for the time being . . .

Back to Washington and New York. There are several changes to those states’ laws that are of importance to telemarketers. Washington’s amendments include, among other things:…

Continue Reading Washington State and New York Join the State Telemarketing Law Amendment Fray

Late last week, Oklahoma Governor Kevin Stitt signed the state’s Telephone Solicitation Act of 2022 (OTSA) into law.

A couple of months ago, as the legislation was working its way through the Oklahoma state legislature, we noted that, like its Florida counterpart – the Florida Telephone Solicitation Act (FTSA) – the law would prohibit “a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers . . . without the prior express written consent of the called party.” (Emphasis added.)

The OTSA maintains the above-identified autodialer prohibition but, like the FTSA, fails to define what an “automated system for the selection or dialing of telephone numbers” actually is. And, just as with the Florida law, the Oklahoma statute creates a rebuttable presumption that any call or text message to a phone number with an Oklahoma area code is made to an Oklahoma resident or person physically present in the state at the time of receipt. The statute allows for private enforcement and provides for uncapped statutory damages of $500 per violation (potentially tripled if the violation is deemed to be willful or knowing). The law goes into effect on November 1, 2022, likely triggering waves of autodialer litigation.…

Continue Reading New Oklahoma Telephone Solicitation Act Is Not OK – But It Does Contain an Important Exemption