JUNE 2019

Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals has joined the Fourth Circuit in finding the debt collection exemption to the Telephone Consumer Protection Act (“TCPA”) to be unconstitutional, and like the Fourth Circuit, it severed the exemption rather than striking the whole TCPA cell phone call ban.  Duguid v. Facebook, Inc.

Comment: We are counsel in the Fourth Circuit case and have appealed arguing that severing the exemption results in less speech, not more speech, which is the goal of the First Amendment.

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MAY 2019

Consumer Financial Protection Bureau

The Consumer Financial Protection Bureau (“CFPB”) issued a notice of proposed rule-making with regard to the Fair Debt Collection Practices Act which would limit debt collectors to no more than seven attempts by telephone per week to reach a consumer about a specific debt and require debt collectors to send consumers certain information about the debt including itemization and how to dispute the debt.  Comments are due 90 days after publication in the Federal Register which will happen in the coming weeks and can be submitted using Docket No. CFPB-2019-0022 at www.regulations.gov.

Comment: Please contact me if you would like assistance with filing comments. Frequency restrictions regarding how often a telemarketer or debt collector can contact a consumer are rare, but states and federal agencies are increasingly proposing them.

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APRIL 2019

Federal Trade Commission

The Federal Trade Commission (“FTC”) has obtained settlements with two charities after alleging they deceived donors with false claims about their charitable purposes.  FTC v. Disabled Police and Sheriffs Foundation, Inc. and FTC v. American Veterans Foundation, Inc.  The charities and their executive directors are banned from soliciting charitable contributions in the future and from making false claims.

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MARCH 2019

Federal Trade Commission

The Federal Trade Commission (“FTC”) has obtained a temporary restraining order against a group of companies which allegedly collected fake debt from consumers which the companies had purchased from Scott Tucker, a payday loan generator recently seen in a Netflix documentary “Dirty Money”.

Comment: When the FTC obtains a temporary restraining order, it is “kicking the doors down” on a business, stopping it from doing business without negotiation or warning.

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FEBRUARY 2019

TCPA

More courts are enforcing arbitration provisions to defeat purported Telephone Consumer Protection Act (“TCPA”) class actions.  In re: Midland Credit Management, Inc. (S.D. Cal. Jan. 31, 2019); Petrie v. Gosmith, Inc. (D. Colo. Jan. 31, 2019).

Comment: For the arbitration clauses to apply, the calls or texts must be related to the topic of the agreement, and not some unrelated goods or services.

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JANUARY 2019

Eighth Circuit Court of Appeals

The Eight Circuit Court of Appeals has ruled that an insurer had no obligation to provide coverage to a sender of faxes because of an exclusion in the insurance language for “distribution of material in violation of statutes”.  American Family Insurance Co. v. Vein Centers for Excellence, Inc.

Comment: Most insurance Telephone Consumer Protection Act (“TCPA”) cases have been resolved by similar exclusion language.  Insurers started including TCPA exclusion language after TCPA class actions began to become common.

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NOVEMBER 2018

Federal Communications Commission

Consumer comments submitted in response to the Federal Communications Commission’s (“FCC”) request concerning the definition of automatic telephone dialing system (“ATDS”) urged the FCC to adopt Marks v. Crunch San Diego, LLC and its logic that any system which stores telephone numbers is an ATDS.  Comments were due October 17, 2018 and reply comments were due October 24, 2018.

Comment: If the FCC uses the definition of ATDS found in the statute and assigns meaning to the words “using a random or sequential number generator”, it must, using normal rules of statutory construction, give meaning to those words and limit the term to a system with that capability.

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OCTOBER 2018

Eleventh Circuit Court of Appeals

The Eleventh Circuit Court of Appeals (which includes Florida and other states) is considering oral argument on the issue of whether a single text constitutes sufficient “injury” to give a plaintiff standing to sue under the Telephone Consumer Protection Act (“TCPA”).  The defendants argued that the single text did not make plaintiff’s phone inoperable, prevent him from receiving other text messages or phone calls, or cost him anything.  Salcedo v. Hanna

Comment: The same argument would be relevant to unanswered calls which did not deliver a voicemail message.

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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

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