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TRUMP’S CAMPAIGN TO GO IT ALONE ON FIRST AMENDMENT CHALLENGE TO THE TCPA

Nov 23 2016

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

On Monday, the U.S. Department of Justice (“DOJ”) declined to intervene in Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.). As previously discussed here, a class of plaintiffs sued President-Elect Trump’s campaign alleging violations of the Telephone Consumer Protection Act (“TCPA”) in connection with text messages sent during the campaign. In seeking dismissal of the suit, the campaign argued that the TCPA does not pass muster under the First Amendment. Specifically, the campaign asserted that Congress’s November 2015 exemption of calls relating to government debt constitutes “preferential treatment” and qualifies as a “blatant and egregious form of content discrimination.”

The DOJ did not provide a reason for declining to intervene, and the campaign is now faced with the prospect of going it alone in its First Amendment challenge to the TCPA.

AS CAMPAIGN DRAWS TO A CLOSE, TRUMP’S FIRST AMENDMENT CHALLENGE TO THE TCPA CONTINUES ON

Nov 07 2016

By Andrew C. Glass, Gregory N. Blase, Christopher J. Valente, and Michael R. Creta

Donald Trump’s presidential campaign recently moved to dismiss a Telephone Consumer Protection Act (“TCPA”) claim on First Amendment grounds. Thorne v. Donald J. Trump for President, Inc., 1:16-cv-04603 (N.D. Ill.). The class-action complaint alleged that the campaign violated the TCPA by sending text messages without permission. In response, the campaign argued that the TCPA’s prohibition on the use of automatic telephone dialing systems (“ATDS”) for calls or text messages placed to cellular telephones, 47 U.S. Code § 227(b)(1)(A)(iii) (the “cell phone ban”), improperly regulates speech on the basis of content. Specifically, the campaign asserted that the ban cannot withstand strict scrutiny because it does not “further[] a compelling interest” and is not “narrowly tailored to achieve that interest.” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011).

Second Circuit Finds Offer of Judgment on Individual Claims Negates Standing for Class

Oct 27 2016

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

The Second Circuit recently refused to allow a plaintiff to proceed with a putative class action brought under the Telephone Consumer Protection Act (“TCPA”) in Bank v. Alliance Health Networks, LLC, finding that he lacked standing after the District Court entered judgment for Defendant in the amount of an unaccepted offer of judgment on Plaintiff’s individual claims.

D.C. Circuit Keeps the Conversation Going in ACA Challenge to FCC’s 2015 Order

Oct 21 2016

By Andrew C. Glass, Joseph C. Wylie, Gregory N. Blase, and Molly K. McGinley

On Wednesday, October 19, 2016, a panel of the U.S. Court of Appeals for the D.C. Circuit (including Hons. Srikanth Srinivasan, Harry T. Edwards, and Cornelia Pillard) heard argument in ACA International v. FCC (D.C. Cir.), the much-anticipated challenge to the FCC’s July 2015 TCPA Order (“July 2015 Order”)(previously discussed here). The court’s questioning of counsel for Petitioners and Respondents focused on a few key issues presented in the ACA’s challenge to the July 2015 Order.

Federal Court Dismisses Suits for Failure to Allege Harm Traceable to Any TCPA Violation

Oct 19 2016

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Eric W. Lee

The Southern District of California recently dismissed two Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. § 227 actions for a failure to allege any concrete injury traceable to defendants. In both actions, the court found that plaintiffs had not alleged any concrete harm traceable to defendants’ alleged violation of the TCPA. Due to this, the court held that plaintiffs lacked standing under Spokeo v. Robins, 136 S.Ct. 1540 (2016) (previously discussed here), in which the U.S. Supreme Court held that “a bare procedural violation, divorced from any concrete harm [does not] satisfy the injury-in-fact requirement of Article III.”

House Energy And Commerce Committee Calls For Modernizing The TCPA

Sep 28 2016

By Pamela J. Garvie, Andrew C. Glass, Gregory N. Blase, Peter V. Nelson, and Elana R. Reman

On September 22, 2016, the House Energy and Commerce Committee’s Subcommittee on Communications and Technology held a hearing on modernizing the TCPA. The hearing is significant because it marks the first time that lawmakers on both sides of the aisle have said the TCPA needs to be updated to reflect changing technology and business practices and to draw a distinction between “harassing, malicious” calls from “bad actors” and “legitimate, informational calls that consumers want.” Republican members of the Subcommittee have raised concerns about the TCPA during past FCC oversight hearings, but this hearing actually was held at the request of full Committee Ranking Democrat Member Frank Pallone Jr. (D-NJ), Subcommittee Ranking Democrat Anna Eshoo (D-CA), and congresswoman Jan Schakowsky (D-IL).

Third Circuit Finds Jurisdiction Despite Anti-Aggregation Rule, Holds TCPA Class Settlement Is Not Covered by Insurance Agreement

Sep 27 2016

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and Eric W. Lee

In a precedential but split ruling, the Third Circuit recently held that diversity jurisdiction existed over a declaratory judgment action seeking insurance coverage for a classwide settlement of Telephone Consumer Protection Act (“TCPA”) claims even though no individual member of the underlying class had a claim in excess of the required $75,000 amount in controversy. See Auto-Owners Insurance Company v. Stevens & Ricci Inc., No. 15-2080, — F.3d — (3rd. Cir. 2016). The court also affirmed that the TCPA class settlement did not constitute covered “property damage” or “advertising injury” under the terms of the subject insurance policy.

The case arose when an insurance company sought a declaratory judgment that it had no obligation to defend or indemnify an insured law firm in connection with a class action lawsuit alleging TCPA violations. The named plaintiff in the underlying the class action lawsuit had alleged that the law firm violated the TCPA by sending unsolicited fax advertisements. The insurance company sought a declaratory judgment in the Eastern District of Pennsylvania against both the law firm and the named plaintiff in the underlying class action. At summary judgment, the district court concluded that the sending of unsolicited fax advertisements in violation of the TCPA did not fall within the terms of the applicable insurance policy.

Wireless Communications Trade Group Opposes FCC Petition Seeking Declaration That Text Messages Are Subject to the FCC’s Open Internet Order

Sep 13 2016

By Andrew C. Glass, Gregory N. Blase, Roger L. Smerage, and
Eric W. Lee

The wireless trade group CTIA–The Wireless Association recently asked the Federal Communications Commission (“FCC”) to reject a petition that asks the agency to declare that text messages fall under the FCC’s Open Internet Order. Twilio, Inc., a cloud-based company that manages and facilitates the sending of automated text messages, filed the petition, which seeks to have the FCC confirm that text messages are telecommunication services subject to Title II of the Communications Act of 1934 and the protections of the Open Internet Order. The petition argues that wireless carriers use imprecise filtering systems to block millions of text messages that people have asked to receive, including critical information from their schools. It also claims that wireless carriers are violating the FCC’s rules under the Telephone Consumer Protection Act, 47 U.S.C. § 227, by blocking text messages without giving consumers a choice or making them aware of the practice.

PROFESSIONAL PLAINTIFFS BEWARE: COURTS DISMISS TCPA CLAIMS ON STANDING GROUNDS

Sep 01 2016

By Joseph C. Wylie II, Molly K. McGinley, Nora E. Becerra

At least two courts have recently dismissed TPCA claims where the plaintiffs appeared to manufacture standing. In Telephone Science Corp. v. Asset Recovery Solutions, the Northern District of Illinois dismissed a TCPA complaint brought by a plaintiff whose business model involved the intentional receipt of autodialed or prerecorded calls. There, the plaintiff, Telephone Science Corp. (“TSC”), operated a service called “Nomorobo,” designed to block certain unwanted calls. TSC uses a “honeypot” of telephone numbers, analyzes calls made to those numbers to identify numbers that TSC’s service identifies as being made using an autodialer or artificial or prerecorded voice calls, and then blocks calls made to Nomorobo subscribers made using those identified numbers.

Webinar: Developments Under the Telephone Consumer Protection Act

Aug 31 2016

Please join four of our partners with a broad range of experience involving the Telephone Consumer Protection Act (TCPA) for a webinar addressing important topics relating to what presently is one of the most ubiquitous statutes in class action litigation. The webinar will cover:

An overview of the TCPA and related regulations
Current litigation trends and developments under the TCPA
Impact of recent orders of the Federal Communications Commission
Practical effects on businesses and compliance issues
ACA International’s appeal regarding automatic telephone dialing systems

Panelists:

Gregory N. Blase, Partner, Boston
Andrew C. Glass, Partner, Boston
Molly K. McGinley, Partner, Chicago
Joseph C. Wylie II, Partner, Chicago

To register, please click here.

Catagory:Other Topics