Last weekend, New York Governor Andrew Cuomo declared a state of emergency in the State due to the coronavirus outbreak. That’s scary enough. But there is an equally scary and somewhat odd consequence of New York’s declared state of emergency: the recently enacted New York Nuisance Call Act kicks in automatically. As a practical matter,
Last week, companies engaged in debt collection were not-so-gently reminded that making calls using an automated dialer to any number other than the one provided by the consumer is incredibly risky—and in Rash Curtis & Associates’ case, a $267 million risk.
Calls made to phone numbers with the consumer’s prior express consent are not prohibited…
Many children, including myself, were taught the childhood mantra: “Sticks and stones may break my bones, but words will never hurt me.” The chant intended to be a retort to name calling—a declaration that you were above the insults. But what about text messages? Could a single text message hurt me in a way that could amount to the harm required to sustain a Telephone Consumer Protection Act (TCPA) claim? On August 28, 2019, the Eleventh Circuit answered this question in the negative with its decision in Salcedo v. Hanna, — F. 3d –, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019). With Salcedo, the Eleventh Circuit created a potential circuit split by finding that a plaintiff could not rely on a single text message to amount an injury in fact necessary to establish Article III standing for a TCPA action.
The plaintiff filed a TCPA suit after having received a single multimedia text message from his former attorney and that attorneys’ law firm offering a ten percent discount on future services. The Plaintiff alleged this lone message caused him harm by (1) wasting his time during which both he and his phone “were unavailable for otherwise legitimate pursuits,” and (2)”resulted in an invasion of [his] privacy and right to enjoy the full utility of his cellular device.” The Eleventh Circuit rejected both arguments.
Utah traditionally has been a hive of activity in the telemarketing and “how to make money” education verticals. The Utah Consumer Protection Division (the “Division”) and the Division’s lawyers at the Office of the Attorney General appear to be trying to change that. Industry participants have been watching closely a lawsuit filed by the attorney general on behalf of the Division in federal court in Utah. Last week, that lawsuit was thrown out on jurisdictional grounds. The lawsuit and the court decision shed light on the aggressive approach the Division is taking to this type of business activity and the limits on the authority of states to use the remedial tools available to the FTC.
Under 15 U.S.C § 6103(a), an attorney general of any state can bring suit in federal district court, as parens patriae, when the state has reason to believe that telemarketing violations are adversely affecting its residents. The district court here concluded that the Division did not have parens patriae standing, because no Utah resident had been injured—REW did not sell its services to Utah residents.
A bipartisan, public/private coalition of 51 attorneys general and 12 phone companies have agreed to create the “Anti-Robocall Principles,” a set of eight principles to fight “illegal robocalls” that the phone companies have voluntarily agreed to adopt by incorporation, or continued incorporation into their business practices. The principles are available here and press release is here.
Why it matters: “Illegal and unwanted robocalls continue to harm and hassle people every day. Consumer fraud often originates with an illegal call, and robocalls regularly interrupt our daily lives. Robocalls and telemarketing calls are the number one source of consumer complaints at many state Attorneys General offices, as well as at both the Federal Communications Commission and the Federal Trade Commission. State Attorneys General are on the front lines of enforcing do-not-call laws and helping people who are scammed and harassed by these calls.” according to the principles.
The coalition of companies includes twelve major carriers.
On May 17, 2019, the U.S. Supreme Court announced it would not hear an appeal in Supply Pro Sorbents, LLC v. RingCentral, Inc., apparently satisfied with a Ninth Circuit ruling that the inclusion of a one-line company identifier on a fax cover page was not in violation of the TCPA’s bar on unsolicited advertisements.…
On May 16, 2019, FCC Commissioner Michael O’Rielly gave a speech at the ACA International Washington Insights Conference in Washington, DC, which gave a preview of how the Commission may shape the TCPA landscape in the near future. Commissioner O’Rielly’s full speech is available here. He gave his thoughts on a number of subjects and some of the highlights are below.
As to the TCPA’s definition of “automatic telephone dialing system” (ATDS or more commonly known as “autodialer”) litigation post-ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Commissioner correctly noted that the “‘fog of uncertainty’ . . . remains thicker than ever,” with numerous courts struggling to interpret the TCPA and issuing conflicting decisions. He characterized some decisions as “illogically [finding] the FCC’s 2003 and 2008 orders defining an ATDS to be controlling post-ACA.” And, he went on to remark that:
[T]hat just pales in comparison to the medley of courts that have chosen to ignore the DC Circuit [in ACA Int’l] and instead follow the 9th Circuit’s extremely misguided and breathtakingly expansive definition of ATDS [in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018)] as a device that stores numbers to be called, irrespective of whether they have been generated by a random or sequential number generator.
The Federal Trade Commission’s settlement with an online consumer lending platform, Avant LLC, highlights the importance of legal and regulatory compliance in the fintech space, including—perhaps most importantly—what happens after a loan is made.
According to the Commission’s complaint, Avant offered personal consumer loans through its website. The complaint notes that although the loans were formally issued through a bank partner, Avant handled all stages of the process, and all consumer interactions, including advertising, application processing, and all aspects of loan servicing and collection of payments.
The Commission’s allegations stem primarily from Avant’s collection activities, and Avant’s representations about the payment process, under the Federal Trade Commission Act, the Telemarking Sales Rule (TSR); and the Electronic Fund Transfer Act (EFTA) and Regulation E. The allegations include that Avant:
Twombly and Iqbal—two names that invoke fond memories of the first year of law school for the (much) younger attorneys—have defined the bar that each plaintiff must meet to survive a Rule 12(b)(6) motion to dismiss. Walk into any first-year civil procedure class and you’ll hear the students muttering the following like a nursery rhyme or a page from a Dr. Seuss book, “Twombly said ‘enough facts to state a claim to relief that is plausible on its face’ and Iqbal followed ‘[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.’” The lesson the students are supposed to take away is that a complaint must connect the dots between a defendant and the claim.
In a recent ruling issued by the Southern District of California, Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court confirmed that this fundamental requirement applies, unsurprisingly, to Telephone Consumer Protection Act (“TCPA”) claims against multiple defendants. In particular, the court dismissed the TCPA claim because the plaintiff failed to identify who actually called him.
We love us some Jim Croce here at Venable and his 1972 ballad, Operator (That’s Not the Way It Feels), is resonating with us right now. In Operator, Croce sings about a man confessing to an operator about his love for an ex-girlfriend. He needs the operator’s help to find a telephone number for his ex, as she’s moved on and she is no longer at the number he has for her. Ironically, if the heartbroken man were to leave a message for his lost love at her old telephone number, well, the Telephone Consumer Protection Act (“TCPA”) plaintiffs’ bar might be all over it and allege a violation of the Act for leaving a prerecorded message without the consent of the new owner of that number. Silly? Yes. Possible? Also yes. However, a recent decision out of the U.S. District Court for District of Minnesota – the first of its kind as far as we are aware – gives a bit of security to industry. There, the court applied a “reasonable reliance” test to determine whether a caller could be liable for leaving a prerecorded message for the wrong person when the previous owner of the telephone number had provided his prior express consent to receive calls at that number.
In Stewart L. Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018), defendant Credit One Bank placed 140 collection calls to the plaintiff’s cell phone over a three-month period; in four of those calls, the bank left a prerecorded message in the plaintiff’s voicemail box. Credit One, however, was seeking to reach the account holder, rather than the plaintiff. Unbeknownst to Credit One, the account holder, for whom the bank had appropriate TCPA consent, had changed telephone numbers, with his former number being reassigned to the plaintiff. The bank had no relationship with the plaintiff. When the plaintiff finally informed Credit One that he was not the individual whom the bank was trying to reach, the bank immediately added the number to its internal do-not-call list and placed no more calls to him. Nonetheless, the plaintiff alleged that Credit One violated the TCPA.