JULY 2015

8th Circuit

The Eight Circuit Court of Appeals has reversed a trial court in a purported TCPA class action involving calls promoting a film.  Golan v. Veritas Entertainment, LLC.  The alleged messages were purported public surveys but actually promoted a film titled “Last Ounce of Courage.”  The Appeals Court ruled that the lower court made a mistake when it ruled these calls were not telemarketing and reversed the decision.

FCC

YourTel America has entered into a $3.5 million settlement with the FCC resolving an investigation into whether the company failed to protect the confidentiality of consumers’ personal information.  The FCC found the company stored consumers’ personal information on unprotected servers accessible via the Internet.

At 6:00 p.m. on Friday, July 10, the FCC issued its order implementing new restrictions on calls to cell phones under the TCPA.  The rule can be reviewed here https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order.

Comment: I would be happy to discuss the rule with you in more detail, but in my opinion, it will not “clarify” compliance issues and will more likely confuse legitimate businesses attempting to comply with the rule and encourage more TCPA litigation.

TCPA

A federal judge in Illinois has ruled against a TCPA class action defendant which argued that the proposed class was overbroad and thus should be dismissed.  Johansen v. GVN Michigan, Inc.  The defendant also argued that the TCPA is not enforceable as a class action.

Comment: Judge Posner, a very famous judge, ruled “The motion and supporting memorandum are intemperate and borderline frivolous, and I warn the defendant that if it persists in this vein of hyperbole and indignation it and its counsel will be courting sanctions, which I will not hesitate to impose.”  This is about as bad a loss as an attorney can imagine.

U.S. Congress

Chuck Schumer (D-NY) has recently proposed a bill which would require prior express consent for use of automatic telephone dialing system or prerecorded message to call any number, including land lines for commercial solicitation purposes.  A similar restriction in the TCPA currently applies only to calls to cell phones.

California

A California judge has supported sanctions against Verizon Wireless in a discovery dispute in a TCPA class action.  Lofton v. Verizon Wireless.  The case involved calls to persons who were not actually Verizon subscribers, i.e. wrong numbers.

Comment: The Court found Verizon “engaged in sanction-worthy conduct” by allowing its debt collector to destroy call records.  It required Verizon to pay half of plaintiff’s reasonable costs in seeking the discovery from the Court.  It is extremely important that a defendant notify its vendors that documents are not to be destroyed and that normal document destruction procedures be suspended for documents potentially relevant to the suit.  This includes all documents, electronic and paper, etc.


Florida

A trial court has refused to reconsider its previous ruling that a TCPA plaintiff could not sue Obama for America in a class action, and that she could only proceed as an individual.  Shamblin v. Obama for America. 

New York

The New York Assembly proposed a bill (AB 6205) which would specify that entities marketing energy services are subject to the state and national “do-not-call” laws.  The bill would also require contracts for telemarketing services to require that any calling company register with the state prior to making calls.

Pennsylvania

A court has denied a TCPA defendant’s motion to stay a case based on FCC review of whether a consumer can revoke express consent.  Leon v. Target Corp.  The Court ruled that consumers have a right to revoke consent and businesses cannot require that the revocation be made in writing.

South Carolina

A South Carolina court has refused to dismiss a TCPA action against a debt collector which allegedly called the plaintiff’s cell phone without her express consent.  Williams v. Bank of America.  The Court ruled that the complaint did not need to include her telephone number to survive a motion to dismiss.

A South Carolina court has dismissed a purported class action against a nonprofit which allegedly violated the TCPA by sending a prerecorded call offering insurance services.  Fitzhenry v. Independent Order of Foresters.  The defendant argued it was exempt from the ban on prerecorded calls because it was a nonprofit organization.  The Court ruled that the plain language of the statute exempted calls by or on behalf of a tax-exempt organization and therefore dismissed the case.