FEBRUARY 2019

TCPA

More courts are enforcing arbitration provisions to defeat purported Telephone Consumer Protection Act (“TCPA”) class actions.  In re: Midland Credit Management, Inc. (S.D. Cal. Jan. 31, 2019); Petrie v. Gosmith, Inc. (D. Colo. Jan. 31, 2019).

Comment: For the arbitration clauses to apply, the calls or texts must be related to the topic of the agreement, and not some unrelated goods or services.

Read More

JANUARY 2019

Eighth Circuit Court of Appeals

The Eight Circuit Court of Appeals has ruled that an insurer had no obligation to provide coverage to a sender of faxes because of an exclusion in the insurance language for “distribution of material in violation of statutes”.  American Family Insurance Co. v. Vein Centers for Excellence, Inc.

Comment: Most insurance Telephone Consumer Protection Act (“TCPA”) cases have been resolved by similar exclusion language.  Insurers started including TCPA exclusion language after TCPA class actions began to become common.

Read More

NOVEMBER 2018

Federal Communications Commission

Consumer comments submitted in response to the Federal Communications Commission’s (“FCC”) request concerning the definition of automatic telephone dialing system (“ATDS”) urged the FCC to adopt Marks v. Crunch San Diego, LLC and its logic that any system which stores telephone numbers is an ATDS.  Comments were due October 17, 2018 and reply comments were due October 24, 2018.

Comment: If the FCC uses the definition of ATDS found in the statute and assigns meaning to the words “using a random or sequential number generator”, it must, using normal rules of statutory construction, give meaning to those words and limit the term to a system with that capability.

Read More

OCTOBER 2018

Eleventh Circuit Court of Appeals

The Eleventh Circuit Court of Appeals (which includes Florida and other states) is considering oral argument on the issue of whether a single text constitutes sufficient “injury” to give a plaintiff standing to sue under the Telephone Consumer Protection Act (“TCPA”).  The defendants argued that the single text did not make plaintiff’s phone inoperable, prevent him from receiving other text messages or phone calls, or cost him anything.  Salcedo v. Hanna

Comment: The same argument would be relevant to unanswered calls which did not deliver a voicemail message.

Read More

SEPTEMBER 2018

Eighth Circuit Court of Appeals

The Eighth Circuit Court of Appeals has dismissed a Telephone Consumer Protection Act (“TCPA”) fax case where the plaintiff alleged the fax opt-out notice was deficient.  The court noted the fax opt-out notice was there, and regardless of technical errors in the language, the recipient had no standing to sue because he never attempted to opt-out of receiving faxes.  St. Louis Heart Center, Inc. v. Nomax, Inc

Read More

AUGUST 2018

Federal Trade Commission

The Federal Trade Commission (“FTC”) has obtained an injunction from a federal court stopping a telemarketing company which allegedly charged up front fees from consumers to secure them government grants of up to $10,000.  FTC v. Hite Media Group, LLC, et al.  The defendants were based in Phoenix, Arizona.

Comment: Usually, the FTC only seeks a temporary restraining order against a defendant accused of violating the Telemarketing Sales Rule (“TSR”) if allegations of financial fraud are involved.

Read More

JUNE 2018

Federal Trade Commission

A company purportedly offering student loan debt relief has settled charges brought by the Federal Trade Commission (“FTC”) alleging fraud and violation of the national “do-not-call” registry.  FTC v. Student Debt Relief Group.  The company was forced to turn over more than $2.3 million in assets to the FTC.

Read More

MAY 2018

Federal Trade Commission

A Florida-based company will surrender more than $3 million of assets to the Federal Trade Commission (“FTC”) to settle claims of illegal telemarketing of timeshare resale services.  The callers charged property owners $2,500 in advance claiming to be able to broker a sale of their timeshare and the FTC alleged these claims were false.  FTC v. J. William Enterprises, LLC, et al.

Read More