SEPTEMBER 2018

Eighth Circuit Court of Appeals

The Eighth Circuit Court of Appeals has dismissed a Telephone Consumer Protection Act (“TCPA”) fax case where the plaintiff alleged the fax opt-out notice was deficient.  The court noted the fax opt-out notice was there, and regardless of technical errors in the language, the recipient had no standing to sue because he never attempted to opt-out of receiving faxes.  St. Louis Heart Center, Inc. v. Nomax, Inc

Fifth Circuit Court of Appeals

The Fifth Circuit Court of Appeals has invalidated a Civil Investigative Demand issued by the Consumer Financial Protection Bureau (“CFPB”) because it did not provide the recipient sufficient notice of the purpose of the subpoena.  CFPB v. The Source for Public Data, LP.  Because the demand did not identify an alleged violation or a relevant provision of law which was violated, the court said the agency exceeded its investigative authority under federal law.

Comment: State attorneys general, the Federal Trade Commission (“FTC”), and most government regulators issue broad requests for information, and this case could be an important protection if you receive an overbroad request.

Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has reversed a trial court’s ruling that a system is an “automatic telephone dialing system” (“ATDS”) only if it had the capacity to generate random numbers or call numbers sequentially.  Marks v. Crunch San Diego, LLC.  The appeals court ruled that a system could still be an ATDS even if it did not randomly or sequentially generate numbers, and it still could be an ATDS if a human uploaded the list into the system to be dialed or texted.  See http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/14-56834.pdf.

In another Ninth Circuit case, the appellate court ruled that the California attorney general could force two charities to provide their lists of donors to the state despite the fact that the attorney general had failed to keep information confidential in the past.  Americans for Prosperity Foundation v. Becerra.  The Supreme Court in 1958 ruled that the lists could subject donors to harassment and intimidation, but the Ninth Circuit held that the disclosure would only have “at most a modest impact on contributions”.

Comment: Anonymous contributions are protected by the First Amendment just as much as anonymous speech, and I don’t see this ruling surviving an appeal to the Supreme Court.  All too often, regulators uses investigations as “punishment”, forcing investigative companies to provide vast amounts of irrelevant information, and in this situation, a disclosure which is unconstitutional, in my opinion.

U.S. Congress

Two versions of the “Stop Bad Robocalls” Act are being considered by the United States House and the United States Senate (HR 6026, S 3078).  Both would modify the TCPA to define the term “robocall” as a call dialed without “substantial additional human intervention to dial” or “using an artificial or prerecorded voice”.  The law would then replace “automatic telephone dialing system” (“ATDS”) with the term “robocall” for the prohibitions including the ban on calls to cell phones.  The bill would also provide a safe harbor for calls to reassigned numbers if the original owner of the number gave prior express consent to the caller and the caller accessed the reassigned numbers database.  The Federal Communications Commission (“FCC”) would also be directed to establish regulations to ensure authenticity of caller identification information.

Comment: Thus, this bill should give callers a measure of protection if they use a system which requires human intervention to dial a call, i.e. that system could not be a “robocall” under the statutory definition.

Florida

A Florida court has rejected the named plaintiffs request to act as class counsel in a TCPA case.  Doyle v. Florida Health Sols., Inc.  Plaintiff had also pled that he could not afford the filing fees for his complaint and the court rejected his ability to act as class counsel.

Minnesota

A Minnesota court ruled that a class action extends TCPA statute of limitations.  The plaintiff, who was called more than 1,400 times, after she had revoked consent, sued a debt collector, but missed the four-year statute of limitations for many of her calls, filing her suit more than four years after the calls were placed.  Christensen v. Ocwen Loan Servicing, LLC.  The court, however, allowed her to file her claims because another TCPA class action had been filed against Ocwen and the plaintiff could have participated in that class.  The court relied on a 1974 Supreme Court case that ruled a statute of limitations is extended if a defendant is sued in a class action, and allowed the plaintiff to continue her case.

Comment: Because of the vast number of TCPA class actions being filed, this extension of statute of limitations ruling could have effect on many of your individual TCPA defense matters.

New Jersey

A bill has been filed and forwarded to the Committee on Consumer Affairs in the New Jersey General Assembly (AB 4384) which would prohibit “telephone call mitigation technology” by prohibiting a telemarketer to make another unsolicited telemarketing sales call to a telephone number if it is terminated within five seconds of the end of a previous call to the same customer.

Comment: Any entity which initiates another call within five seconds of a previously terminated call likely would be running the risk of being charged with unfair trade practices under federal and state law, as well.

New York

A New York court has ruled that a TCPA claim does not end when the plaintiff dies and that the plaintiff’s heirs could pursue the claim in a debt collection matter.  Sharp v. Ally Financial, Inc.

Ohio

An Ohio court has ruled that a spouse could consent on her husband’s behalf to receive calls on her husband’s telephone number.  Rodriguez v. Premier Bankcard, LLC.  The court also ruled that the plaintiffs were entitled to revoke express consent despite language in a credit card contract.