WTK Connect
This blog provides updates and important insights about products liability, commercial, and consumer litigation. It aims to educate our audience on the developments in these areas as well as to provide the audience with unique perspectives from seasoned defense attorneys. ______________________________________________________________________________________________________________________
- District Court Holds Text Messages Sent As Part Of Ongoing Business Transaction With The Plaintiff Are Not Advertising Or Telemarketing Under The TCPA
Jan 29, 2019 | Posted by Kirsten F. Gallacher | Topic: Class Actions
In An Phan v. Agoda Company Pte. Ltd., No. 16-CV-07243-BLF, --- F. Supp. 3d ----, 2018 WL 6591800 (N.D. Cal., Dec. 13, 2018),[1] the district court granted summary judgment for the defendant upon holding that text messages sent from the defendant to the plaintiff were merely transactional—i.e., did not contain advertising or telemarketing—and thus were not subject to the heighted standard requiring prior express written consent.
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[1] This decision was appealed to the Ninth Circuit on January 4, 2019.
- Information Gathering or Advertising: FCC to Rule on What Constitutes An Advertisement For Purposes Of TCPA Liability
Jan 29, 2019
The Telephone Consumer Protection Act (“TCPA”) is aimed at protecting consumers from unsolicited telephone marketing calls and faxes. In order for liability under the TCPA to be triggered, an unsolicited call of fax must be an “advertisement” i.e., “any material advertising the commercial availability or quality of any property, goods, or services.” See 47 U.S.C. § 227(a)(5). Because of this “unsolicited advertisement” requirement, Courts and the Federal Communications Commission (“FCC”) are often tasked with determining if a call or fax is in fact an advertisement. Hopefully, what constitutes an advertisements will be further defined once the FCC issues an order in Kenneth A. Thomas MD LLC v. Best Doctors, Inc., No. 1:18-cv-10957.
Continue reading... - The Supreme Court Will Address Whether District Courts Are Required to Accept the FCC’s Legal Interpretation of the TCPA, Which Will Likely Have Huge Ramifications on TCPA Litigation
Nov 30, 2018 | Posted by Kirsten F. Gallacher | Topic: Class Actions
On November 13, 2018, the United States Supreme Court granted in part a petition for a writ of certiorari of the Fourth Circuit’s decision in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 883 F.3d 459 (4th Cir. 2018). The specific question before the Supreme Court is “[w]hether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.”
Continue reading... - TCPA Settlement Denied Due to Attorney Fees Inconsistent with Plaintiff’s “Relative Lack of Success”
Oct 31, 2018 | Posted by James P. Leonard | Topic: Class Actions
An Illinois federal judge recently denied a proposed settlement in a series of three TCPA cases known as the Ocwen cases essentially because the amount request for attorney fees—over 5.2 million—was too high, given class counsel’s “relative lack of success.”An Illinois federal judge recently denied a proposed settlement in a series of three TCPA cases known as the Ocwen cases essentially because the amount request for attorney fees—over $5.2 million—was too high, given class counsel’s “relative lack of success.”
Continue reading... - The Sixth Circuit Limits Third-Party Liability for Junk Faxes
Jun 28, 2018 | Posted by Kirsten F. Gallacher | Topic: Class Actions
In Health One Med. Ctr., Eastpointe P.L.L.C. v. Mohawk, Inc., 889 F.3d 800 (6th Cir. 2018), the Sixth Circuit held drug manufacturers could not be held liable for sending junk faxes that they knew nothing about.
Continue reading... - Ninth Circuit Affirms That Company is Not Liable when Plaintiff Provided Prior Express Consent through Insurance Enrollment Form
Apr 30, 2018 | Posted by Elizabeth Chiba Rein | Topic: Class Actions
The Ninth Circuit in Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789 (9th Cir. 2018) recently affirmed the entry of summary judgement in a Telephone Consumer Protection Act (“TCPA”) class action because Plaintiff Audrey Fober (“Plaintiff”) provided prior express consent.
Continue reading... - Ninth Circuit Calls on Established Principles of Vicarious Liability to Affirm Summary Judgment in TCPA Class Action
Feb 28, 2018 | Topic: Class Actions
The Ninth Circuit Court of Appeals affirmed summary judgment in favor of the multiple defendants in a Telephone Consumer Protection Act (TCPA) class action case law interpreting the same and Federal Communications Commission (FCC) rulings in reliance upon the Restatement (Third) of Agency,—none of whom had sent the subject text message.
Continue reading... - TCPA Survivor: Fundraiser for the American Cancer Society Evokes the Nonprofit Exemption to Escape Liability
Nov 30, 2017 | Posted by Elizabeth Chiba Rein | Topic: Class Actions
The Northern District of Illinois recently granted summary judgment for Associated Community Services (“ACS”), a registered professional fundraiser soliciting funds for the American Cancer Society (the “Society”), who had been sued under the Telephone Consumer Protection Act (“TCPA”) in Spiegel v. Reynolds, No. 1:15-cv-08504, (N.D. Ill. Oct. 11, 2017). This decision is particularly noteworthy, given that it is one of the few federal court opinions analyzing the TCPA’s nonprofit exemption.
Continue reading... - Ninth Circuit Affirms That Company Is Not Vicariously Liable Under The TCPA
Aug 31, 2017 | Topic: Class Actions
For the vast majority of people, telemarketing calls have become a fact of life. And for the vast majority of corporations, defending class action lawsuits pursuant to the Telephone Consumer Protection Act (“TCPA”) has become a fact of life. One murky issue that litigants in these class actions have to resolve is that of vicarious liability.
Continue reading... - Ninth Circuit Ruling Brings Dismissed TCPA Suit Back to Life
May 31, 2017 | Posted by Elizabeth Chiba Rein | Topic: Class Actions
A district court in the Northern District of California District Court granted a plaintiff’s motion for reconsideration, finding it actually possessed subject matter jurisdiction based on the Ninth Circuit’s recent ruling in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017).
Continue reading... - Facebook Dodges Robotext Class Action Because Plaintiff Failed to Properly Allege Sufficient Facts That Automated Telephone Dialing System Was Used
Feb 28, 2017 | Topic: Class Actions
Many Facebook users have signed onto their accounts using unfamiliar devices (i.e. not their home computers). We can all probably recall the sudden yearning to know the latest gossip from our social network while at work or at a friend’s house. Unable to resist that urge we log-on using our work computer or our friend’s phone to “like” the latest photo or post our own selfie
Continue reading... - Gold’s Gym Prevails On Summary Judgment In TCPA Class Action Because Plaintiff Failed To Effectively Revoke His Prior Express Consent to Receive Text Messages
Feb 28, 2017 | Topic: Class Actions
The Ninth Circuit Court of Appeal recently affirmed a lower court’s decision to grant the defendant’s motion for summary judgment in a TCPA class action involving text messages on the basis of consent. See Van Patten v. Vertical Fitness Grp., LLC, No. 14-55980, 2017 U.S. App. LEXIS 1591 (9th Cir. Jan. 30, 2017)
Continue reading... - Alarm Manufacturers Defeat TCPA Claims Based On Vicarious Liability
Jan 31, 2017 | Posted by Robert K. Dixon | Topic: Class Actions
The U.S. District Court for the Northern District of West Virginia recently granted summary judgment for the home security alarm manufacturers in In re Monitronics International, Inc. Telephone Consumer Protection Act Litigation (“Monitronics”) despite Plaintiff’s allegations that these defendants were vicariously liable for calls made by other companies that attempting to sell home security’s systems made by the defendants.
Continue reading... - California Court Slashes Attorney’s Fee Award in TCPA Settlement
Dec 23, 2014 | Posted by Robert K. Dixon | Topic: Class Actions
The fact that the court approved another multimillion-dollar Telephone Consumer Protection Act (“TCPA”) class action settlement is not particularly surprising. What is particularly surprising, however, is that the court in Rose v. Bank of America Corporation reduced plaintiffs’ counsel’s attorney’s fee award by approximately 70%, and did so even though the defendant did not object to the fees being sought. 2014 U.S. Dist. LEXIS 121641, *3, 36–37 (N.D. Cal. Aug. 29, 2014).
Continue reading... - Package Delivery Notifications Exempt from TCPA
Aug 27, 2014 | Posted by Robert K. Dixon
The FCC granted, in part, Cargo Airline Association’s (“CAA”) petition for declaratory ruling, and as result, “package delivery companies may alert wireless consumers about their packages, as long as consumers are not charged and may easily opt out of future messages if they wish, among other pro-consumer conditions.” (In re Cargo Airline Association Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, ¶1 (2014).)
Continue reading... - Texts, Tacos, and the TCPA on Vicarious Liability
Aug 27, 2014 | Posted by Robert K. Dixon
In Thomas v. Taco Bell, Inc., the Ninth Circuit affirmed a district court’s ruling in a Telephone Consumer Protection Act (“TCPA”) case, which held that Taco Bell was not vicariously liable for text messages sent by a third party advertising a Taco Bell product. (See Thomas v. Taco Bell Corp., No. 12-56458, 2014 U.S. App. LEXIS 12547 (9th Cir. July 2, 2014).) The ruling is one of the first California appellate decisions to consider the issue of vicarious liability since the FCC’s declaratory ruling, which held that companies can be “vicariously liable under federal common law agency principles [i.e. Formal Agency, Apparent Authority, and Ratification] for a TCPA violation by a third-party telemarketer.” (In re Joint Petition filed by Dish Network LLC, CG Docket No. 11-50, ¶24 (2013) (“Dish Network”).)
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