December 1, 2020

Volume X, Number 336

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November 30, 2020

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TCPA Turnstile: As we wait for a ruling in Barr, new case law abounds (TCPA Case Update Vol. 12)

Undoubtedly, the biggest TCPA development in the last month was the recent Supreme Court oral argument in Barr v. American Association of Political Consultants Inc., Case No. 19-631, which has the potential to upend TCPA jurisprudence as we know it.  While we wait for a Supreme Court decision, the oral argument made a few things clear:

  1. A decision striking down the entire TCPA is (fingers crossed) a real possibility.  Chief Justice Roberts put it most bluntly when he stated “I wonder why in that situation the whole statute shouldn’t fall.”  It remains to be seen whether a majority of the justices will be willing to go down that road.
  2. A decision striking down the government debt exemption in the TCPA seems likely.  No justice seemed to suggest in oral argument that the exemption could reasonably be categorized as anything but a content-based restriction, and there was no real argument that the exemption could survive application of strict scrutiny.
  3. All that said, the justices seem to like the TCPA as a statute, for whatever that is worth.  Chief Justice Roberts called it an “extremely popular law,” which leads us to the inescapable and not-at-all surprising conclusion that the Chief Justice does not read this blog.

But as TCPA watchers were focused on the Supreme Court, other courts have continued to issue notable TCPA decisions.  We reviewed the more than four dozen TCPA cases published since our last update and compiled the most noteworthy decisions, listed below by issue category in alphabetical order.

ATDS: In an unfortunate decision for TCPA defendants, the Second Circuit recently held that a texting program used by a nightclub to send unsolicited text messages to telephone numbers on a list it maintained constituted “automatic telephone dialing systems” (ATDS) under the TCPA.  See Duran v. La Boom Disco, Inc., 955 F.3d 279, 290 (2nd Cir. 2020).  The court rejected the defendant’s argument that the system must have the capacity to randomly or sequentially dial numbers to be an ATDS, holding that it was enough that the system had the capacity to store a list of numbers and dial it without human intervention.  Id.  But other courts have continued to find that “the ATDS definition indicates that a system must include a random or sequential number generator” and grant summary judgment on that basis.  See Smith v. Truman Road Dev., LLC, 2020 WL 2044730, *5 (W.D. Mo. Apr. 28, 2020); see also Thomas-Lawson v. Koons Ford of Baltimore, Inc., 2020 WL 1675990, *6 (D. Md. Apr. 6, 2020) (granting dismissal for failure to adequately plead an ATDS); Nakai v. Charter Commc’ns, Inc., 2020 WL 1908949 (C.D. Cal. Apr. 15, 2020) (same).

Called Party: In Thompson v. Portfolio Recovery Associates, LLC, 2020 WL 1986991, *2 (S.D. Fla. Apr. 25, 2020), the court granted defendant’s motion for summary judgment because it found that the plaintiff was not the “called party” since  the plaintiff only received the calls because his cousin forwarded calls to his phone.  The court also ruled that the system used to make the calls was not an ATDS because it lacked the “capacity to produce or store telephone numbers using a random or sequential number generator.”  Id.

Damages:  In U.S. v. DISH Network, LLC, 2020 WL 141844, *8 (7th Cir. Mar. 26, 2020), the Seventh Circuit vacated a $280 million award against DISH Network, LLC, for TCPA violations and remanded the case.  The court held that the district court erred in considering only DISH’s “ability to pay” when the analysis of damages should “start from harm rather than wealth, then add an appropriate multiplier.” Id.  But the court otherwise affirmed the District Court’s judgment finding DISH liable under the TCPA.

Revocation of Consent: One issue companies have struggled to deal with is what happens when a customer expressly consents to receive ATDS calls, only to revoke that consent at a later date.  The Eleventh Circuit’s decision in Medley v. Dish Network, LLC, 2020 WL 2092594 (11th Cir. May 1, 2020), offers hope for dealing with this administrative headache.  The court held that consent is irrevocable if it is made as part of a binding contract.  Id. at *6.  “Permitting [plaintiff] to unilaterally revoke a mutually-agreed-upon term in a contract would run counter to black-letter contract law in effect at the time Congress enacted the TCPA.”  Id.

Stay: Many defendants have sought a stay of their cases pending the Supreme Court’s ruling in Barr, and several such motions have been granted.  See Boger v. Citrix Sys., Inc., 2020 WL 1939702, *2 (D. Md. Apr. 22, 2020); Lacy v. Comcast Cable Charter Commc’ns, LLC, 2020 WL 2041755, *3 (W.D. Wash. Apr. 28, 2020); Nakai v. Charter Charter Commc’ns, Inc., 2020 WL 1908949, *6 (C.D. Cal. Apr. 15, 2020).

© 2020 Vedder PriceNational Law Review, Volume X, Number 142
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About this Author

Blaine C. Kimrey, media defense Litigation, Vedder Price Law Firm Chicago Office
Shareholder

Blaine C. Kimrey is a Shareholder in the Litigation practice area in the firm’s Chicago office.

A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property,...

312-609 7865
Bryan Clark Media & Privacy Law  litigation Vedder Price Law Firm Chicago
Associate

Bryan Clark is an Associate at Vedder Price and a member of the Litigation group in the firm’s Chicago office.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.

Mr. Clark’s other representative work includes drafting successful dispositive motions in right of publicity and invasion of privacy cases,...

312-609 7810
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