JULY 2018

Federal Trade Commission

The Federal Trade Commission (“FTC”) has announced “Operation Donate with Honor”, a series of cases brought against allegedly fraudulent charities raising money purportedly for veterans and service members.  See https://www.ftc.gov/news-events/blogs/business-blog/2018/07/operation-donate-honor-law-enforcers-unite-challenge.  Many states have filed related actions.

California

California approved the California Consumer Privacy Act of 2018 (AB 375) which will give consumers the right to request that businesses disclose the categories and specific personal information they collect about consumers, the purpose for collecting the data, and the categories of third parties with which the information may be shared.  This law is effective January 1, 2020 and will also allow consumers to opt out of the sale of their information.

A California court has issued a show cause order against Anton Ewing, a noted Telephone Consumer Protection Act (“TCPA”) pro se plaintiff.  Ewing v. K2 Prop Development, LLC.  Ewing accused defense counsel of criminal deceit and requested a protective order against her prohibiting her from communicating via e-mail.  Ewing’s motion to contempt was, in part, based on defense counsel sending settlement terms to an email Ewing provided her to be notified in the event of settlement. 

Comment: Ewing was ordered to pay $2,214 in sanctions to defendant and show cause as to why additional sanctions should not be levied.

A California court has awarded a TCPA plaintiff $106,000 in a default judgment based on 43 telephone calls.  Most notably, the court interpreted the terms “willfully” or “knowingly” to include intentional acts, not just acts which knowingly or intentionally violate the law.

Florida

Florida has begun requesting extensive information including scripts, telephone numbers, corporate filing documents, and manager information for entities filing an affidavit of exemption.  The regulation provides that “at the request of the department, the commercial telephone solicitor shall provide sales scripts, contracts, and other documentation as needed to verify the validity of the exemption before the affidavit of exemption is accepted for filing”.

Comment: The above language does not give the state the ability to request a “mini” registration.  Please contact me if you would like to discuss a limited informational letter to obtain a Florida affidavit of exemption.

Illinois

An Illinois court has dismissed a claim brought against Sirius XM Radio and its telephone vendors alleging they used an automatic telephone dialing system (“ATDS”) to call plaintiff’s cell phone without his prior express consent.  Pinkus v. Sirius XM Radio, et al.  The judge relied on ACA Int’l v. FCC to hold that the Federal Communication Commission’s “(FCC”) definition of the term “capacity” to dial without human intervention was invalid and that the statutory definition limited the term to dialing random or sequential numbers.

Comment: If the dialing system does not have the capacity to generate numbers randomly or sequentially, it is not an ATDS under this court ruling.

Ohio

An Ohio court has dismissed a case brought against a law firm based on two texts it sent to accident victims soliciting services.  The court ruled that the complaint did not allege the texts were sent using an ATDS and therefore dismissed the case.  Lord v. Kisling.