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.

The Federal Communications Commission (“FCC”) and the FTC held a joint policy forum with regard to illegal robocalls on March 23, 2019 and will hold an expo in Washington, D.C. on April 23, 2019 on the same topic.  The expo is intended to feature devices and technology to minimize or eliminate illegal robocalls.

Third Circuit Court of Appeals

The Third Circuit has ruled that a customer satisfaction survey was not a “pretext” for marketing and could not be considered to be an advertisement or marketing for TCPA compliance purposes.  The court ruled that including a website or trade name did not convert the informational survey into an advertisement.  Mauthe v. National Imaging Associates.

Arizona

An Arizona judge has certified a TCPA case brought against GoDaddy, alleging that calls placed by its “customer development team” were telemarketing calls and subject to the TCPA’s cellphone call ban.  Bennett v. GoDaddy, LLC.  The court concluded that consent issues were not an individualized question.

Connecticut

The court has ruled that, whether a fax is solicited or unsolicited, is an individualized question and, if relevant to a case, precludes certification of that case as a class action.  Gorss Motels v. The Eric Ryan Corp.  The court also ruled that the FCC did not have authority to require disclosures in solicited faxes (a rule the FCC has since rescinded). 

Illinois

An Illinois court has dismissed a case brought against AT&T which alleged it sent texts to the plaintiff using an automatic telephone dialing system (“ATDS”) in violation of the TCPA.  Gadelhak v. AT&T Services.  The court ruled that the system did not have a random number generator to produce numbers and, therefore, did not fall within the statutory definition.

Oregon

A jury has returned a $925 million judgment in a TCPA prerecorded call class action.  Wakefield v. ViSalus.  ViSalus is a multi-level marketing company which sells weight loss and nutritional products.  The complaint alleged that ViSalus made unsolicited prerecorded calls.  The jury determined ViSalus made 1,850,436 calls in violation of the TCPA, resulting in the massive damage amount.

Comment:  ViSalus is a private company, it is uncertain what portion of this judgment it can pay.

Pennsylvania

A Pennsylvania court has denied a motion for summary judgment brought by Dish Network in a TCPA case where Dish allegedly called plaintiff’s cellphone without consent.  Ruby v. Dish Network.  Dish’s debt collector called Ruby 64 times attempting to collect a debt and used an automatic telephone dialing system. The court ruled that plaintiff’s consent obtained in its contract could be revoked, and that question of fact meant that summary judgment was not appropriate.

Comment: A subsequent “do-no-call” request revokes express consent and vice versa.

A judge has ruled that a plaintiff created “sham” calls and did not have standing to sue under the TCPA.  Shelton v. Target Advance, LLC.  The judge found that the plaintiff’s sole business purpose was to lure telemarketers into calling the plaintiff so that the plaintiff could bring TCPA lawsuits against them.

Comment: Plaintiff’s attorney, Bryan Reo, is a well-known TCPA plaintiff himself and now seems to have transformed into a TCPA plaintiff’s attorney.

Texas

The Texas House is considering a bill (HB 1992) which would amend the state’s caller ID statute to prohibit sending misleading information to a recipient’s caller ID device or misrepresenting the origin of the telemarketing call.

Washington

A Washington court has refused to dismiss a case brought against A Place for Mom, holding that the calls qualified as advertisements and were not “only information”.  The court disagreed and ruled that calls were advertisements requiring “prior special written consent.”  Pine v. A Place for Mom