AUGUST 2016

FCC

The FCC has announced a task force between the agency and several communications companies including Google, AT&T, and others designed to seek a technological cure for illegal prerecorded telephone calls.  The task force likely will attempt to collaborate between carriers and the agency to offer commercial blocking services to consumers.

California

A California court has ruled that a settlement payment to a mutual plaintiff did not make the matter moot for purposes of class action determination.  Edwards v. Oportun, Inc.

Comment: The Supreme Court left the issue open of whether actual delivery of the funds, rather than just an offer, would make the matter moot for class action purposes.  This judge rejected that argument.  The Court also denied defendant’s motion to stay, i.e. delay the case, based on the challenge to the FCC’s regulations currently ongoing in the District of Columbia.

A California court has ruled that Twitter could be liable for texts sent to persons who obtained a number previously used by a different Twitter subscriber.  Nunes v. Twitter, Inc.  The Court ruled that Twitter “made” the texts as defined in the TCPA.

Comment: The judge ruled that Twitter should ask Congress to amend the statute to protect it from liability for calls to reassigned numbers, but that the TCPA provides for that liability.  This case could result in a huge settlement.

A California court has ordered that a purported TCPA class action plaintiff is not entitled to all call logs of a defendant.  Davis v. AT&T Services, Inc.  The Court ruled that pre-class certification discovery should be limited to certification issues, i.e. whether or not the case is appropriate for a class action.  Broad fishing requests like all numbers called are not relevant to that determination especially if the numbers called do not match the class definition proposed by the plaintiffs.

Comment: Discovery in TCPA class actions is an often-abused tool of plaintiffs who ask for burdensome, irrelevant, and abusive items.  This order gives good language for other defendants seeking limitation on such requests.

District of Columbia

A federal judge has ruled that a data breach alone, without resulting harm to consumers, does not result in a legally actionable case.  Attias v. CareFirst, Inc.  The Court ruled that absent evidence that stolen data has been or will be used, individuals do not have standing to sue for breach.

Comment: Whether a person can sue for a “naked” statutory violation, with no actual damages, is an important issue with regard to the TCPA. I have seen many suits recently by plaintiffs suing because a disclosure was not perfect (e.g. missing one element), but with no actual damages caused by the “violation.”  This data case is an example of courts ruling that “naked” violations of other statutes are not actionable.

Illinois

An Illinois judge has dismissed a TCPA lawsuit against a debt collector when the recipient for the calls created a “honey pot” of numbers designed to be called in violation of the TCPA.  Tel. Sci. Corp. v. Asset Recovery Solutions, LLC.  The complaint alleged that the numbers received more than 12,000 recorded calls from the defendant.  While the Court determined the “honey pot” did not create the illegal calls, it ruled that TSC’s “damages” were not within the “protected zone of interest” created by the TCPA because TSC was not an injured consumer.  It could not allege privacy invasion, nuisance, or inconvenience because it subscribed to the numbers solely to receive illegal calls.

Missouri

A judge has denied a motion for summary judgment brought by a defendant in a TCPA class action.  Margolis v. Surrey Vacation Resorts, Inc.  The plaintiff alleged he received calls on his cell phone concerning vacation options in Branson, Missouri.  The defendant argued that the number had been transferred from a previous subscriber to the number and that he used a pseudonym “George Larson” to complete online surveys. 

Comment: The plaintiff Max Margolis is a well-known TCPA plaintiff’s attorney and plaintiff.  Although the Court found the individual claim could survive, it found that the online survey and other factual issues “raised serious questions regarding the named plaintiff’s ability to serve as class representative.”

New Jersey

A New Jersey court has ruled that an individual suit against DirecTV could continue despite a similar class action in the state of California.  Swetra v. DirecTV.  The plaintiff alleged he received collection calls on his cellular telephone number for an unrelated account.

Pennsylvania

A Pennsylvania court has denied standing to a plaintiff who purchased more than 35 cell phones for the sole purpose of generating lawsuits under the TCPA.  Stoops v. Wells Fargo Bank.  She also registered the phones in areas where she did not live.

Comment: The Court found and confirmed that the plaintiff lacked “prudential standing” because she intentionally encouraged “violations” of the statute.

Utah

The federal government has claimed civil penalties in the amount of $487,000 against a company which had been found to violate the TCPA millions of times.  The original ruling caused a speculation that the company could be subject to billions of dollars of damages.  U.S. v. Corporations for Character, LLC et al.

Comment: Plaintiffs in TCPA class actions often argue for catastrophic levels of damages based on $500 (or $1,500 for knowing or willful violations) per phone call which quickly amount to millions of dollars for any sizeable campaign.  Absent a default, or actual fraud, courts have not awarded these sorts of catastrophic damages, and the government’s claim for a much smaller amount, i.e. less than a million dollars, shows that the government itself does not think such catastrophic damages are warranted or perhaps obtainable.