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Posts published in “TCPA”

TCPA Roundup: As Big Data Grows, So Does Scale of TCPA Violations

As big data grows, so does the scale of TCPA violations, and with that the settlements; one of the largest in TCPA history was in the news last week. In a California district court, attorneys who guided consumers in suing a bank for a $32 million settlement were denied a bid to increase their fees to $8 million. The settlement was the largest TCPA deal to be approved at the time, settling the case in which the plaintiffs claimed they had received automated phone calls from the defendants without their consent. However, this past July saw a $75.5 million settlement granted preliminary approval in…

Eleventh Circuit Clarifies Prior Express Consent Under TCPA, Reverses Mais

With its decision in Crawford v. LVNV Funding, LLC still leaving a bad taste in the collection industry’s mouth, the Eleventh Circuit has provided some solace to the financial services industry with its decision in Mais v. Gulf Coast Collection Bureau, Inc., No. 13-14008 (11th Cir. Sept. 29, 2014).  The key holding was the reversal of the district court’s interpretation of “prior express consent” under the Telephone Consumer Protection Act. Plaintiff sued the medical service provider and its debt collection agent for making autodialed or prerecorded calls to his cellular telephone in violation of the TCPA.  His wife had given his cellular telephone…

En Banc Hearing Sought in FDCPA Case, Crawford v. LVNV

Last month’s 11th Circuit Court of Appeals’ decision that allowed a Fair Debt Collection Practices Act claim to be made against a bankruptcy proof of claim filed on out-of-statute debt will get a rehearing if a petition filed by LVNV Funding, LLC is granted. An Outlier Decision Crawford caused a stir when it was issued a few weeks ago because it upset a well-settled body of law that prohibited such FDCPA claims. And although en banc requests are often denied, when a decision conflicts with an established body of law there is a better chance it will be granted. That may be what happens here.…

TCPA Victory May Expand Scope of Vicarious Liability Claims

Companies that hire vendors to place automated calls to cell phones may find themselves at greater risk for Telephone Consumer Protection Act troubles following a decision from the Ninth Circuit Court of Appeals in Thomas v. Taco Bell Corp. The recent decision follows a May 2013 ruling from the Federal Communications Commission in In re Dish Network, LLC, that applied an expanded view of liability for a vendor’s conduct (also known as “vicarious liability”). Widening the TCPA Trap for Vendor Conduct What the FCC said in In re Dish Network, LLC  is that TCPA liability is not limited to the “classical” theory of a company’s responsibility for its vendor’s wrongdoing, the theory being that a company is…

TCPA Prior Express Consent Must Come From ‘Called Party’

The Telephone Consumer Protection Act requires a call placed to a cellular phone using an autodialer, to have the prior express consent of the person who received the call, the Eleventh Circuit Court of Appeals held this past Friday. In Osorio v. State Farm Bank, debt collection calls were made to a cellular phone line subscribed to by Fredy Osorio.The intended recipient of the calls was Osorio’s long-time cohabitant, Clara Betancourt.  Betancourt had previously applied for car insurance from State Farm and at the same time applied for and received a credit card from State Farm to which her car insurance premiums were…

FCC Says TCPA Clarification Coming Soon

According to a blog post made by Federal Communications Commissioner Michael O’Rielly, immediate changes are needed to the Telephone Consumer Protection Act to address the flood of litigation caused by its own “complex and unclear” rules. Citing changes in business models and methods of communications he notes that the FCC’s rules have become “complex and unclear” and suggests that clarification would benefit all parties impacted by the TCPA.  Another concern voiced by the Commissioner is the fact that TCPA complaints have increased by 30 percent in the past year and that there is a growing backlog of petitions to the FCC…

Looking Back at 2013

2013 brought some significant developments to consumer financial services law. It began early with a favorable Fair Debt Collection Practices Act decision from the U.S. Supreme Court, followed by several interesting Telephone Consumer Protection Act decisions. But what really set the year apart was the activity we saw from federal regulators. Here’s my list of some of the most significant developments from around the country, which will likely impact 2014. U.S. Supreme Court The year began with the Supreme Court’s decision in Marx v. General Revenue. The Supreme Court held that a plaintiff who is unsuccessful in a claim brought under…

ABA’s CFSC Meeting to Feature CFPB, FTC, Consumer Attorneys

I’ll be heading to Park City, Utah this weekend for the Winter Meeting of the American Bar Association’s Consumer Financial Services Committee. The focus of the CFSC is on all things in consumer financial services law — payment systems, deposit accounts, fair lending and yes, debt collection. This meeting is going to feature several panel discussions with officials from the Consumer Financial Protection Bureau and the Federal Trade Commission along with well-known consumer advocates all discussing issues surrounding debt collection. Enforcement actions, the recent ANPR, TCPA litigation and CFPB regulation of attorneys are among the topics we’ll cover.  As always, this…

Federal Court Rules All Debt-Collection Calls Exempt from TCPA

A federal judge in Pennsylvania has ruled that the Telephone Consumer Protection Act does not apply to debt-collection calls, even calls made to cellular telephones. A copy of the decision is available here. Noting that Congress enacted the TCPA to address telemarketing, the decision relied upon a portion of the Eleventh Circuit Court of Appeals’ decision in Meadows v. Franklin which stated, “the [Federal Communications Commission] has determined that all debt-collection circumstances are excluded from the TCPA’s coverage.” The decision is certainly in the minority as nearly all courts examining the issue have determined that debt-collection calls made to cellular telephones using an automatic telephone…

Third Circuit: TCPA Allows Consumers to Revoke Prior Express Consent

Yesterday, the Third Circuit Court of Appeals held that the Telephone Consumer Protection Act (47 U.S.C. § 227) allows a consumer to revoke her prior express consent to be called using an autodialer or prerecorded voice. In its decision, Gager v. Dell Financial Services, the Circuit Court reversed a district court’s earlier finding that once a consumer provided consent to receive autodialed or prerecorded calls, a consumer cannot later revoke the consent. Persons using autodialer technology or prerecorded messages are required by the TCPA to obtain the “called party’s” “prior express consent” before making their calls. While some types of calls…

Court Vacates Opinion Finding Preview Dialers Within Scope of TCPA

Some relief has come to those using preview dialers to make telemarketing or informational calls to cell phones. The court in Nelson v. Santander vacated its opinion of March 8, which held that preview dialers were automatic telephone dialing systems subject to regulation by the Telephone Consumer Protection Act . The order was entered on June 7, on a joint motion and stipulation made by the parties. The case was dismissed, with prejudice, that same day. The order vacating the March 8 opinion is here. While the March 8 opinion of Nelson v. Santander is no more, it provides a frightening lesson in…

A Slice With Sausage, Peppers and Prior Express Consent: The Papa John’s TCPA Class Action

Yesterday, Lawyers.com reported that Papa John’s, the national pizza chain, had reached an agreement to settle for $16.5 million a Telephone Consumer Protection Act class-action claim. If approved by the court, the settlement will put an end to an interesting lawsuit involving the TCPA’s prior express consent requirements. The TCPA proscribes the use of an “Automatic Telephone Dial System” to call a person’s cell phone, without first obtaining the called party’s “prior express consent” to receive such a call. Enacted in 1991, many courts, including the Ninth Circuit Court of Appeals, have found that the sending of  text messages to cell phones using an…