Areas of Law – Page 7

Proposed Arbitration Fairness Act Would Ban Pre-Dispute Arbitration Clauses in Consumer Contracts

May 05 2015

By Andrew C. Glass, Robert W. Sparkes, III, Roger L. Smerage, Eric W. Lee

Two members of Congress are seeking to expand the reach of a federal ban on pre-dispute arbitration agreements to cover nearly all consumer contracts. The proposed legislation would have a widespread effect, barring the use of pre-dispute arbitration provisions in credit card agreements, auto loan agreements, wireless telephone service contracts, and many other types of consumer-facing agreements that often contain such provisions.

On April 29, 2015, Senator Al Franken (D-Minnesota) and Representative Hank Johnson (D-Georgia) introduced the Arbitration Fairness Act of 2015 (“AFA”) (S. 1133; H.R. 2087). The proposed legislation would amend the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”), to prohibit parties from entering into agreements to arbitrate consumer disputes in advance of a dispute arising. The bar on pre-dispute arbitration agreements would also apply in the context of employer, antitrust, and civil rights disputes.

Client of Blast Fax Solutions Provider Hit with $22 Million TCPA Judgment

Apr 13 2015

By Joseph C. Wylie II, Molly K. McGinley, and Nicole C. Mueller

A new decision once again highlights the dangers that companies face if their independent contractors engage in conduct that violates the Telephone Consumer Protection Act, and highlights the need to monitor contractor compliance with the TCPA. In City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., a federal court in New Jersey recently found a roofing company, David/Randall Associates, liable for $22.4 million under the TCPA for the actions of its blast fax solutions provider, Business to Business Solutions (B2B). The plaintiff had alleged that the roofer and its president were liable for the transmission of fax advertisements 44,832 times to 29,113 different fax numbers by its independent contractor, B2B, without obtaining the prior express invitation or permission of the recipients and without including an FCC-required opt-out notice.

Unmanned Aircraft–A Winged Threat to Privacy?

Mar 16 2015

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

It is has been a busy time in the field of unmanned aircraft systems (a.k.a., drones). The Federal Aviation Administration recently released a Notice of Proposed Rulemaking that would allow the widespread use of small unmanned aircraft for a variety of low-altitude, line-of-site commercial operations–something currently prohibited by the agency. However, the FAA does not typically deal with privacy issues. So, while the FAA will regulate the use of these devices, President Obama issued a Presidential Memorandum calling for the National Telecommunications and Information Administration to begin a multi-stakeholder process to outline industry guidelines related to privacy, transparency, and accountability in the use of unmanned aircraft. (See our recent client alert on the FAA small UAS NPRM and the Presidential Memorandum by clicking here.) Although the NTIA’s typical focus is on telecommunications issues, it has convened a multi-stakeholder processes to address privacy issues involving such things as mobile app disclosures and facial recognition technologies. Read More

Supreme Court Won’t Review Class Arbitrability Question Now, But Second Circuit May Hear Case That Could Generate Circuit Split

Mar 11 2015

By Andrew C. Glass and Roger L. Smerage

The United States Supreme Court recently declined to review a Third Circuit decision holding that ordinarily a court, not an arbitrator, determines the availability of classwide arbitration. Opalinski v. Robert Half International, Inc. 761 F.3d 326 (3d Cir. 2014), cert. denied No. 14-625, — S. Ct. —-, 2015 WL 998611 (U.S. Mar. 9, 2015). The Opalinski decision is important to businesses that use consumer arbitration agreements. The benefits of traditional, individual arbitration – such as lower costs, confidentiality, and the limited scope of an arbitrator’s award – are typically not present in class arbitration. Having a judge, rather than an arbitrator, make the decision of whether to compel individual or class arbitration is meaningful because a judge’s ruling is subject to the regular appellate review process, while an arbitrator’s ruling is subject to only very limited judicial review.

FCC Net Neutrality and Muni Broadband Orders Examined in Upcoming Webcast

Mar 11 2015

The FCC’s recent net neutrality order, classifying broadband Internet access as a Title II common carrier offering, along with the FCC’s decision to preempt North Carolina and Tennessee state laws that placed limits on municipal broadband networks will be examined in a special live webcast on Broadband US TV on Friday, March 13th from 1pm-2:30pm (Eastern).

The webcast, entitled “FCC Takes Charge – Net Neutrality and Muni Broadband: New Title II Rules for Broadband Access and Preempting State Limits on Municipal Networks” will present details about the rulings, predictions on implementation and court challenges, and what these rulings are likely to portend for broadband in America over the next year and beyond.

Co-hosts Marty Stern of K&L Gates and Jim Baller of the Baller Herbst Law Group will be joined by two panels of prominent players and experts on both sides of these white hot issues.

FAA Asks Law Enforcement to Help Police Unmanned Aircraft Use

Jan 30 2015

By Marty Stern, Ed Fishman, Jim Insco, and Tom DeCesar

The Federal Aviation Administration recently released new guidance directed to local and state law enforcement asking for help in policing unmanned aircraft flights that violate its policies. The FAA is concerned with an apparent increase in the unauthorized or unsafe use of small Unmanned Aircraft Systems by individuals and businesses. Read More

Cybersecurity: The Obama Administration Proposes Legislation; Proposals Would Standardize Breach Notification Requirements, Enhance Cybersecurity-Related Information Sharing, and Toughen Cybercrime Prosecution

Jan 21 2015

By R. Paul Stimers, András P. Teleki, Bruce J. Heiman, Michael J. O’Neil

On January 13, 2015, in response to the continuing onslaught of cyber attacks, including the recent cybersecurity attack and data loss at Sony Pictures Entertainment, the Obama Administration sent to Congress three legislative proposals to improve cybersecurity. The proposals would:

Establish a single federal breach notification standard preempting a patchwork of state notification laws;
Encourage cyber threat information sharing within the private sector and between the private sector and the federal government; and
Enhance law enforcement’s ability to investigate and prosecute cyber crimes.

The President has been highlighting the cybersecurity proposals in a series of speeches leading up to the State of the Union Address today.

To read the full alert, click here.

E-LABEL Act Exempts Wireless Devices from Physical Label Requirements

Dec 08 2014

President Obama recently signed the E-LABEL Act, which allows electronics manufacturers to digitally display required FCC labeling information, as opposed to affixing physical labels to the outside of devices. Read More

Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations

Nov 20 2014

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

The National Transportation Safety Board (NTSB) ruled earlier this week that small, unmanned aircraft flights are subject to Federal Aviation Administration (FAA) rules prohibiting careless and reckless aircraft operation, potentially subjecting small, unmanned aircraft operators to civil enforcement penalties for such operations. The FAA appealed the closely watched case to the full NTSB after an administrative law judge (ALJ) reached the opposite conclusion in an earlier proceeding.

Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds

Nov 20 2014

By Andrew Glass and Roger Smerage

The Ninth Circuit recently held that a consumer’s TCPA class action against Sirius XM Radio Inc. (“Sirius XM”) was not subject to Sirius XM’s arbitration agreement. The consumer brought suit alleging that the satellite radio provider violated the TCPA by placing automated calls to his cellular phone without his consent. Sirius XM sought to compel arbitration on an individual basis. The consumer countered that although he purchased a car that was preloaded with a trial subscription to Sirius XM radio, the purchase agreement made no mention of a contract governing the satellite radio service. Rather, the consumer asserted that he did not receive Sirius XM’s terms and conditions until more than a month after he purchased the car, but that those terms required cancellation of service within three days of activation of the trial subscription. Because of the manner in which Sirius XM delivered its terms and conditions to purchasers of cars with trial subscriptions, the Ninth Circuit found that the consumer could not have provided assent to be bound by the arbitration provision. Thus, the Ninth Circuit ruled that neither the arbitration provision nor the class action waiver it contained was enforceable. The decision was issued in a case styled Knutson v. Sirius XM Radio Inc., — F.3d —-, 2014 WL 5802284 (9th Cir. Nov. 10, 2014).

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