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Can an EBR be Created DURING a Telephone Solicitation?

November 29, 2020 by Richard B. Newman

FTC

At least one federal court ruled that an “established business relationship” can be created during a telephone call - and prevent further calls from violating the TCPA - even if that call is a “telephone solicitation” that violates the Telephone Consumer Protection Act. Charvat v. Southard Corp., No. 2:18-cv-190 (S.D. Ohio). Background In Southard, the plaintiff alleged … [Read more...]

Supreme Court Expands TCPA to Cover More Categories of Speech

July 13, 2020 by Richard B. Newman

FTC

In a 6-3 opinion, delivered by Justice Kavanaugh, the Supreme Court affirmed the Fourth Circuit’s ruling in Barr v. American Association of Political Consultants, Inc. and held that the government-debt carve-out from the Telephone Consumer Protection Act’s robocall restrictions can be severed from the rest of the TCPA, leaving the automated calling provisions intact. The … [Read more...]

Court Enforces TCPA Clickwrap Agreement in a Victory for Marketers

June 10, 2020 by Richard B. Newman

FTC

One of the key issues in any Telephone Consumer Protection Act class action lawsuit is whether there exists “prior express written consent.”  In a noteworthy victory for marketers, consent related mechanisms made all the difference. In Lundbom v. Schwan's Home Service, Inc., the plaintiff filed a TCPA lawsuit, alleging that the defendant violated the TCPA by sending her … [Read more...]

Court Addresses Unconstitutional TCPA Damages and Who Can be Held Liable

July 19, 2019 by Richard B. Newman

FTC

A company that managed the ownership rights of a film hired a company to promote and market the film.  There were approximately 3.2 million telephone calls made over a short period of time that delivered a prerecorded audio message from former Arkansas Governor Mike Huckabee. The two plaintiffs received two voice messages and subsequently initiated class action … [Read more...]

Federal Court Holds TCPA Plaintiff Did Not Adequately Allege ATDS

July 2, 2019 by Richard B. Newman

FTC

In Bader v. Navient Solutions, LLC (N.D. Ill. June 14, 2019), the North District of Illinois dismissed a Telephone Consumer Protection Act (TCPA) plaintiff’s claims on the basis that the complaint did not possesses sufficient facts to plausibly allege the defendant had used an automated telephone dialing system (ATDS), consistent with post-ACA International v. Federal … [Read more...]

Telephone Consumer Protection Act Update – TCPA

May 28, 2019 by Richard B. Newman

FTC

FCC Commissioner Delivers Pro-Telemarketer TCPA Speech - May 2019 FCC Commissioner Michael O’Reilly recently delivered a telemarketer defense-oriented speech at an event in Washington D.C.  One of the many issues he addressed was the continuing landslide of frivolous Telephone Consumer Protection Act lawsuits. Commissioner O’Reilly made his opinion clear – the … [Read more...]

TCPA Alert December 2018

December 11, 2018 by Richard B. Newman

FTC

FCC Releases Draft Order to Combat “Robocalls” The Federal Communications Commission recently released two draft orders intended to address  unlawful robocalls. The first establishes a nationwide reassigned number database in order to address caller liability under the Telephone Consumer Protection Act when the new user has not provided prior express written consent.  The … [Read more...]

FTC Attorney on Recent TCPA Litigation Developments

December 3, 2018 by Richard B. Newman

FTC

Congress Proposes Legislation to Combat Robocalls Congress has proposed a bill to attack robocalls.  The “TRACE Act” would expand FCC authority under the Telephone Consumer Protection Act (TCPA) and empower the FCC to mandate call various rules to reduce ID spoofing. Of particular importance, the Act purports to expand the statute of limitations.  At present, the FCC is … [Read more...]

TCPA News for Telemarketers

November 19, 2018 by Richard B. Newman

FTC

SCOTUS Grants Certiorari in TCPA Case Following the ACA International decision from the D.C. Circuit, it was a matter of when, not if.  The deepening splits of opinion regarding interpretation of the Telephone Consumer Protection Act have resulted in the U.S. Supreme Court granting certiorari to a case that could determine whether the  judicial system or the Federal … [Read more...]

Individualized Issues of Consent Result in TCPA Class Action Certification Denial

October 15, 2018 by Richard B. Newman

FTC

Class actions are designed to promote the efficiency of litigation by allowing the claims of a group of individuals with the same claims to be decided in the same proceeding.  They are commonly utilized by plaintiffs’ attorneys in Telephone Consumer Protection Act matters. In the matter of Tomeo v. CitiGroup, Inc., No. 13-C-4046, 2018 U.S. Dist. LEXIS 166117 (N.D. Ill. Sept. … [Read more...]

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