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.

California

California is considering a bill (AB 1202) which would require data brokers to register with the attorney general.  “Data broker” is defined as a person who collects personal information about consumers but does not have a direct relationship with those consumers, but excludes credit reporting agencies and regulated financial and insurance companies. 

Comment: The bill has passed the Assembly and is being considered by the Senate, so it has a significant chance of becoming a law.

A California court has certified a class of persons who received texts from the mobile phone company requesting customers to enter into new leases for telephones.  Esparza v. SmartPay Leasing, Inc.  The judge ruled that plaintiff could not certify a class of all persons who received texts because plaintiff’s claims were not typical as she claimed to have never received any disclosure regarding texts.  The judge did certify the “STOP” class of persons who received texts after sending “STOP”.

Comment: While a partial victory, given that damages could be $500 to $1,500 per text, SmartPay still may face substantial liability.

Indiana

An Indiana judge has denied certification in a fax case for an operator of a motel who argued the faxes he received do not contain proper opt-out information.  The court denied certification of the claim because a determination of whether recipients of the faxes expressly permitted them would require a case-by-case determination. The judge ruled that evidence showed some of the recipients of the faxes had attended trade conventions and permitted Brigadoon to scan their identification badges with contact information, i.e. prior express consent for these faxes.  Gorss Motels v. Brigadoon Fitness.

Comment:  The plaintiff is associated with a Chicago firm which files scores or even hundreds of these cases, and it appears that many of them are based on an agreement between Wyndham Worldwide Corporation and its motel franchisees.  Wyndham made an agreement with third parties, like the defendant in this case, to be approved vendors to those motels.  These vendors then sent faxes to the franchisees, resulting in these lawsuits claiming that the approved vendor agreement did not constitute prior express consent such that faxes would be permitted.  It would be interesting to see how many lawsuits this law firm has brought based on this single contract.

Louisiana

Governor John Bel Edwards has approved the Louisiana Cybersecurity Information Sharing Act (SB 46) which adopts federal standards for sharing of information among public entities to counter cybersecurity threats.

Comment: Louisiana already has a data breach notification law, and I expect more states to adopt data sharing, breach notification, and other protections similar to those in the California Consumer Privacy Act (“CCPA”) and the General Data Protection Regulation (“GDPR”).

Maine

The Maine Senate is considering a bill (SB 89) which would prohibit any artificial or prerecorded voice solicitation calls to any residential telephone number in the state.  The bill would also prohibit transmission of misleading or inaccurate caller identification information with intent to defraud or cause harm.

Minnesota

Two bills have been proposed in Minnesota (HB 2917 and SB 2912) which would establish regulations regarding consumer data processing and sales.  Data brokers, defined as companies which control or process data of 100,000 consumers or more or derive 50% or more of their gross revenue from sales of personal information of consumers, would be required to delete consumer data upon request, confirm whether the personal data has been sold or not, and restrict processing of data under certain circumstances.

Comment:  If passed, Minnesota would join a growing group of states (and the EU) imposing similar restrictions on data sales.

Missouri

A bill has been proposed in the Missouri House (HB 523) which would change the penalty structure for violations of the State do-not-call list from a maximum of $5,000 per knowing violation to a minimum of $2,500 for the first knowing violation and increasing amounts for subsequent violations to the same residential subscriber.  The bill would also impose a cap of $500,000 for any single defendant.

New York

A New York court has ruled against a debt collector who placed 55 calls to an 11-year-old child’s cell phone number.  M.A. v. NRA Grp., LLC.  The court noted, “the TCPA is essentially a strict liability statute …” and therefore found the prerecorded calls to the child’s cell phone were illegal.  The judge then awarded the child $27,500 in damages.

Comment: This is not good news at all, as plaintiffs in other cases involving much higher amounts of damages will use this case to argue the TCPA is a “strict liability statute”.

The New York Senate is considering a bill (SB 3297) which would amend the state’s telemarketing law to prohibit robocalls.  The bill would change the current definition of “automatic dialing announcing device” (“ADAD”) to apply restrictions to “automatic dialing devices”, e.g. calls placed using a predictive dialer would be permitted only with prior express consent or in an emergency.