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.

Federal Trade Commission

The Federal Trade Commission’s (“FTC”) “do-not-call” registry is unable to provide updated versions of the list to purchasers, but states that “telemarketer and seller obligations under the Telemarketing Sales Rule remain in effect”.

Comment: It remains to be seen whether a credit will be given to subscribers to the list (which costs more than $1,000 per month) and/or if there will be a safe harbor for callers who use an outdated version until a new version is available.

General Data Protection Regulation in the European Union

Google has been fined $50 million euros for violating the General Data Protection Regulation (“GDPR”) in the European Union.  A finding by the French government noted that Google did not make its data collection policies easily accessible and did not obtain sufficient and specific user consent for ad personalization.

Comment: The GDPR is very broad and applies to any data collected from a citizen of the European Union even if the business is not in the European Union.  You should review compliance with it if you have the potential of collecting such data.

Multistate Privacy Breach Settlement

Neiman Marcus Department Store has entered into a settlement with 43 states and the District of Columbia to settle allegations of illegality following a 2013 breach of consumer credit card information.  The company also agreed to comply with industry standards regarding credit cards and implement other security technologies.

Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has asked the California Supreme Court to consider whether the insurance coverage applies.  Yahoo! Inc. v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania.  Yahoo has claimed insurance coverage, arguing insurance covered release of third parties’ private information.  The insurance companies claim the texts did not reveal information.  The California Supreme Court is considering the insurance coverage issue with regard to texts sent by Yahoo allegedly in violation of the TCPA. 

Arizona

An Arizona court has denied a motion to stay a TCPA case brought against Cox Communications holding that the Ninth Circuit case in Marks v. Crunch San Diego, LLC is binding law in Arizona and the Ninth Circuit and the court need not wait for Federal Communications Commission (“FCC”) rulings with regard to the definition of automatic telephone dialing system (“ATDS”).  Knapper v. Cox Communications, Inc.

Comment: The court noted that there is no indication a stay would be short as FCC action could happen any time in the future.

Florida

A Florida court has certified a class of recipients of texts offering healthcare plans to truck drivers.  Northrup v. Innovative Health Insurance Partners, LLC.  The class is small relative to other TCPA class actions, consisting of only 2,707 members, but at $500 per member, that means the case could be worth $1.3 million or more if the court finds violations are knowing or willful.

A suit has been filed against a Miami night club alleging it sent illegal text messages.  Rodriguez v. Diskolab, LLC

Comment: The suit alleges the texts were sent using CallFire, a third party texting service.

Georgia

A Georgia court has dismissed a TCPA class action complaint because it alleged the defendant used an ATDS “upon information and belief” with no other factual details.  Broughton v. DJ Acquisitions, LLC.  The court rejected such “conclusory statements” as a basis for a lawsuit.

Comment: The plaintiff, however, will be allowed to amend the complaint and make new allegations, likely with additional factual support.

Iowa

An Iowa court has granted a defendant summary judgment with regard to allegedly illegal collection calls, which plaintiff claimed were sent using an ATDS.  Thompson-Harbach v. USAA Federal Savings Bank.  The court noted that the dialer was incapable of generating random or sequential numbers to dial.  The court noted that the FCC’s rulings on the topic were not controlling in light of the D.C. Circuit case ACA Int’l v. FCC and that the text of the statute was clear requiring “random or sequential” number storage or generation for a system to be an ATDS.  The court therefore ruled in favor of the defendant.

Comment: More and more judges are reviewing the actual language of the TCPA which contains “random or sequential” language.  Using normal rules of statutory construction, a judge cannot ignore this language as the FCC did in its rulings (which have been struck down).

Missouri

A Missouri court has ordered Charter Communications to produce names and telephone numbers of calls to persons internally noted as “wrong number” before the call was made.  Leeb v. Charter Communications, Inc.  The court denied the request for “all communications and other documents pertaining to the TCPA” and other broad requests “not limited to class allegations” in the complaint.

Comment: The court noted that the information was under a protective order and could not be disclosed to third parties, but defendants facing a request for lists of called numbers should be wary, as this information has been abused in other cases.

Nevada

A Nevada court has certified a class of persons who received texts messages from a theater after reserving tickets.  Bauman v. Saxe Management, LLC.  Because the theater did not obtain written consent to send promotional texts, the judge certified the class (with various sub-classes based on when the texts were received). 

Comment: The judge certified the class without regard to how a text was sent, even though the TCPA only applies if the text is sent using an ATDS.  This may be a reason to appeal the order on class certification.

Oregon

An Oregon court has issued sanctions against a telephone marketer who ignored the court’s instructions for over two years by failing to file status reports, respond to discovery, and make other pleadings.  Madsen v. Harris.  The judge noted “defendant’s behavior forced his own attorney to withdraw.”  Although the judge did not impose a default on the defendant, he ruled that he could not present evidence supporting his allegations against plaintiff and would be subject to expenses and attorneys’ fees with regard to failure to respond to requests for admissions and the court would presume any destroyed evidence was unfavorable to the defendant.

Comment: If I was counsel to the defendant, I would advise him to settle.

Utah

A Utah court has ruled that equipment which has the “capacity” to generate or dial random or sequential numbers is an ATDS regardless of whether the call in question was a result of random number generation.  Asher v. Quicken Loans, Inc.

Comment: This case may not be so bad as competent vendors and programmers should ensure a system does not have the capacity to generate or dial random numbers to avoid being classified as an ATDS.