June 2015

FTC

The FTC is sending almost $500,000 in refunds to consumers who were charged for mortgage relief services which were not provided.  FTC v. Jackson Crowder & Assoc.

Comment: This case involved a judgment after a five-day trial which is very rare as most defendants settle.  The Court found that the defendants and various corporations acted together as an enterprise controlled by two individuals.  The Court ruled that no “corporate demarcation” existed between companies and individuals.  They were therefore jointly and severally liable for a judgment.  If multiple corporations are involved in a business enterprise, it is very important that “corporate formalities” be observed to keep them separate so that corporate form can protect owners and business partners from joint and several liability.

TCPA

The United States Court of Appeals for the First Circuit has affirmed a dismissal of the TCPA case alleging illegal unsolicited faxes based on the statute of limitations.  Sparkle Hill, Inc. v. William Warming.

Comment: The statute of limitations for the TCPA is four years.

The United States Court of Appeals for the Sixth Circuit has ruled that faxes containing a list of medications that were covered by insurance were not an advertisement banned by the TCPA.  Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc.  The Court ruled that an advertisement “must promote goods or services to be bought or sold, and it should have profit as a name.”  The Court ruled that no evidence showed that the list of covered drugs were for sale by the sender either at the time of the fax or in the future.

A district court in the Sixth Circuit has ruled that a Rule 68 offer of judgment does not make an individual plaintiff’s class action claim moot.  Charvat v. National Holdings Corp.  The Court ruled that there were grounds for immediate appeal and stayed the case pending that appeal.

Comment: The United States Supreme Court is now considering this issue and will rule whether a defendant in a TCPA claim can make a class action moot by offering the individual plaintiff full settlement of the claim.

California

A California court has dismissed a case brought against AOL alleging it sent plaintiff unsolicited text messages through its instant messenger service.  The plaintiff received three messages in error, presumably the result of some person inputting an incorrect telephone number which happened to be the plaintiffs.  Derby v. AOL, Inc.

Comment: AOL’s argument was that its AIM system was not an ATDS because it requires human intervention to send text messages.  The Court agreed and found that human intervention meant AOL’s system was not an ATDS.

A California court has granted a motion to dismiss a purported TCPA class action against Redbox.  Holt v. Redbox Automated Retail, LLC.  Holt alleges she received unsolicited text messages on her cell phone.  She unsubscribed from a text service and received a confirmation messages which she alleged was illegal.  The Court rejected the argument that the plaintiff did not provide express consent for the opt-out confirmation text message.

A purported class action has been brought against Facebook alleging that it monitored its users’ posts without their express consent in violation of California’s call monitoring statute.  Campbell v. Facebook, Inc.

Comment: Regardless of whether Facebook wins or loses this case, it is important to realize that the monitoring statutes apply to “communications” not just telephone calls and online texts, chats, posts, etc.  All of these communications should be reviewed to ensure compliance with state and federal law regarding interception and monitoring.

Florida

A Florida court has ruled that a debt collector is liable for calls it placed to a consumer’s cell phone because human intervention was not involved in placing the calls.  Brown v. NRA Group, LLC.  The Court rejected plaintiff’s argument that the calls were knowing and willful violations.

Illinois

An Illinois court has granted a stay in a purported TCPA class action based on the Supreme Court accepting the Campbell-Ewald case.  The Supreme Court will decide whether a defendant in a TCPA action can make a plaintiff’s claim moot by offering individual settlement such that the class action cannot proceed.  Fauley v. Royal Canin USA.

Minnesota

A Minnesota court has ruled that a debtor provided her express consent to be called on her cell phone and did not need to specifically consent to prerecorded or ATDS calls for “prior express consent” to exist.  Ebling v. Clear Spring Loan Services.  The Court ruled “when a person knowingly provides his cell phone number to a creditor in connection with a debt, he is agreeing to allow the creditor to contact him regarding his debt, regardless of the means.”

North Carolina

A North Carolina court has dismissed a TCPA claim against a credit card company and its debt collector because the plaintiff failed to state a claim sufficient that the court could grant a leave for alleged violations of the TCPA and Fair Debt Collection Practices Act.  Loney v. HSBC Card Services.  The Court found the plaintiff made no allegations against the named defendant other than it “regularly collects debts in the state of North Carolina,” an activity which violates neither statute.

Pennsylvania

A Pennsylvania House Bill (HB 820) would prohibit telemarketing on a legal holiday.

Comment: Several states impose curfews on telemarketing calls, often with exemption, such as calls to existing customers.  If you would like a list of states banning calls on holidays, please contact me.