Hi, friends,
Well it is almost Halloween here in the states and that means my annual "scary statistics" article is just a few days away. Before we get there, though, I figured I would check in and report on a bunch of fun recent developments over the lighter-than-usual last few weeks in TCPAWorld.
First, my former law firm, Dorsey & Whitney, survived a defamation lawsuit brought by a TCPA attorney who sued the firm over a TCPA blog written by a former pal of mine. It is a big ruling for TCPAWorld.com, and for freedom of speech generally, as it ensures that law firms can continue reporting on breaking TCPA developments without fear of reprisal by disgruntled TCPA plaintiff lawyers. But it also underscores the risk that we intrepid bloggers undertake to bring you fresh content every day. (We're so vain, we probably think this blog is about us.)
Next, a court recently denied certification of a TCPA wrong number class action by crediting an expert report that 75% of all cell phone plans are now shared or family plans, meaning that class members in recycled number suits cannot be identified using a Defendant's business records, except in a tiny percentage of cases. Couple that with the court's determination that self-identifying affidavits cannot be used to identify class members and you have a really big win for Defendants that class action practitioners need to keep in mind.
In one of the biggest cases of the year for debt collectors, a court confirmed that revoking consent to call regarding one account simply does not operate to revoke consent for a collector to call on other accounts. Along the way, the court narrowed a case to the contrary from the same district. Really good stuff.
In the ATDS world, I have provided an update to my big ATDS scorecard that everyone loves so much. In the meantime, yet another case has adopted by the statutory definition and even courts in the Ninth Circuit seem to be avoiding applying Marks where they can get away with it. Especially where HCI is involved.
Plus, a TCPA decision casts serious doubt on whether contracts to buy marijuana online are even enforceable in court. One thing that is enforceable, however: an arbitration clause. So pot start-up Eaze forced a stoner Plaintiff to pursue a TCPA claim related to pot telemarketing – how is that even a thing? – to arbitration. This story is good enough to give you the munchies.
For compliance lawyers out there, we supply a critical analysis of website designs to ensure that TCPA disclosures and arbitration clauses accepted online are actually enforceable against Plaintiffs.
We also break down a pile of other developments:
- Facebook filed a petition to the US Supreme Court to review the application of the First Amendment to the TCPA
- A court in the ND Cal dismissed a TCPA suit for lack of adequate agency allegations
- Evidence of former lawsuits, claims and calls to other consumers was excluded from a TCPA trial against a bank
- TCPAWorld covered the California AG's release of proposed rules implementing the CCPA
In the "just for fun" section: I played dress up along with Tav Gomez at a big LeadCon event in Austin, Texas, last week. Plus President Trump's re-election campaign was sued in a TCPA class action, which I find delightful for some reason – maybe it will prompt him to have his FCC do something about the TCPA madness. And the Arch Duke and I joined ACA for a massive podcast interview. Speaking of ACA, I will be speaking at the big fall expo on November 8, 2019, in Chicago — I will see you there! And speaking of podcasts, Unprecedented will be recording a new episode this week, with noted TCPAWorld serial filer and "pickle maker" Sergei Lemberg joining the crew to chat about Facebook's petition and all else TCPA related.
I guess things have not really been that light after all. Off to carve a pumpkin. Thanks, friends. Chat soon.
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