The Illinois Supreme Court recently issued another decision interpreting the Biometric Information Privacy Act (“BIPA”) to expand potential liability for businesses. The court held in Cothron v. White Castle that each time a business collects or discloses an individual’s biometric data without first obtaining BIPA-compliant consent (for example, each time an employee clocks in and out of work using a fingerprint timekeeping system), a separate claim accrues under BIPA. My colleagues and I have written a report about the court’s decision.
Continue Reading Illinois Supreme Court’s Most Recent BIPA Decision Exponentially Increases Potential Exposure for BusinessesThe Courts of Appeals’ Rigorous Application of TransUnion’s Standing Analysis Continues To Provide Defendants With Strong Arguments For Defeating Non-Injury Class Actions
Motions to dismiss federal-court actions based on a lack of Article III standing are succeeding more frequently—thanks to the Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez. That ruling reaffirmed and clarified that every plaintiff must plausibly allege a “concrete injury” that is “‘real,’ and not ‘abstract,’” even when the plaintiff claims a violation of federal statutory rights.
This past June, the U.S. Chamber of Commerce’s Institute for Legal Reform (ILR) issued TransUnion and Concrete Harm: One Year Later, a 68-page report that we authored for ILR. It explains the multiple arguments made available, or strengthened, by
Continue Reading The Courts of Appeals’ Rigorous Application of TransUnion’s Standing Analysis Continues To Provide Defendants With Strong Arguments For Defeating Non-Injury Class ActionsSupreme Court unanimously holds that Congress took a narrow approach to the types of autodialing devices covered under the TCPA
Ever since the Supreme Court granted review in Facebook, Inc. v. Duguid, businesses facing the risk of TCPA class actions have been waiting to see whether the Court would accept or reject a sweepingly broad interpretation—adopted by three circuits and rejected by three others—of what constitutes an autodialer under the statute.
Today, the Supreme Court unanimously reversed (pdf), holding that equipment must be capable of random or sequential number generation in order to qualify as an “automatic telephone dialing system” under the TCPA.
The Court’s holding has enormous practical significance for defendants facing TCPA class actions. The use of
Continue Reading Supreme Court unanimously holds that Congress took a narrow approach to the types of autodialing devices covered under the TCPA
Ninth Circuit holds that California consumers who abandon damages claims can’t get restitution
It’s pretty common in consumer class actions in California for the plaintiffs to assert causes of action seeking damages as well other causes of action for various equitable remedies (such as restitution). Sometimes, plaintiffs abandon the damages claims in order to get a bench trial on the equitable claims or in an effort to improve their chances of certifying a class. In Sonner v. Premier Nutrition, the Ninth Circuit affirmed the dismissal of consumer-protection claims seeking solely equitable relief because legal damages were available in the same amount for the same alleged harm.
Continue Reading Ninth Circuit holds that California consumers who abandon damages claims can’t get restitution
Courts in Telephone Consumer Protection Act cases Are divided on plaintiffs’ ability to revoke their contractual consent to be called
One of the key issues in any case under the Telephone Consumer Protection Act (TCPA) is whether the plaintiff consented to be called or texted. If the recipient has provided “prior express consent,” the TCPA permits calls or texts to either (i) wireless numbers using autodialers or artificial or prerecorded voices; or (ii) residential telephones using artificial or prerecorded voices. 47 U.S.C. § 227(b)(1)(A)(iii) (cellular telephones); id. § 227(b)(1)(B) (residential telephones). Courts currently are divided on the impact of contracts specifying that consumers agree in advance to receive such calls or texts.
Continue Reading Courts in Telephone Consumer Protection Act cases Are divided on plaintiffs’ ability to revoke their contractual consent to be called
Seventh and Eleventh Circuits Reject, But Second Circuit Follows, Ninth Circuit’s Expansive Autodialer Definition in Marks
One of the most hotly-contested issues in litigation under the Telephone Consumer Protection Act (TCPA) is what equipment counts as an “automatic telephone dialing system” (ATDS) triggering the TCPA’s restrictions. In 2018, the D.C. Circuit threw out the FCC’s interpretation of the statutory definition of an ATDS—which was so broad as to encompass smartphones—as arbitrary and capricious. (See our report on the D.C. Circuit’s ACA International v. FCC decision.) In the wake of that decision—while parties await the FCC’s new rule—courts around the country have been weighing in how best to interpret the statutory text.
The issue is now the subject of a deep circuit split. In recent months, both the Seventh Circuit in Gadelhak v. AT&T Services, Inc. and the Eleventh Circuit in Glasser v. Hilton Grand Vacations Co. (pdf) have concluded that equipment that dials from a pre-selected list of phone numbers does not qualify as an ATDS. (Disclosure: Mayer Brown represented AT&T in Gadelhak; Archis was on the briefs in the Seventh Circuit.) The Seventh and Eleventh Circuits thus rejected the Ninth Circuit’s more expansive interpretation of ATDS in Marks v. Crunch San Diego, LLC. (See our report on Marks.) The Second Circuit, in contrast, recently followed the Marks interpretation in Duran v. La Boom Disco.
In light of this growing divide, lawyers on both sides of the “v.” are waiting for the Supreme Court to step in.
What Must Plaintiffs Show To Establish Specific Personal Jurisdiction Over Corporations in Class Actions?
The Supreme Court has resolved many important questions about personal jurisdiction. But somewhat surprisingly, it has not decided a fundamental question that arises in class actions – to establish specific personal jurisdiction (meaning case-linked personal jurisdiction) over a defendant, must the plaintiff establish that the defendant has sufficient connections to the forum with respect to all plaintiffs’ claims, or only the named plaintiffs’ claims? Not only has the Supreme Court not decided this question, but no court of appeals has yet decided it. The D.C. Circuit will likely be the first, in a case now pending – Molock v. Whole
Continue Reading What Must Plaintiffs Show To Establish Specific Personal Jurisdiction Over Corporations in Class Actions?
Ninth Circuit creates circuit split on what counts as an autodialer under the TCPA
The key question in many Telephone Consumer Protection Act lawsuits is whether the equipment used to call the plaintiff constitutes an autodialer—that is, an “automatic telephone dialing system” or ATDS—within the meaning of the statute. TCPA practitioners have been awaiting the FCC’s guidance regarding the definition of an autodialer. Last spring, the D.C. Circuit set aside the FCC’s expansive definition of that term as arbitrary and capricious. (See our report on the D.C. Circuit’s ruling in ACA International.) Since then, the FCC has been working on its new definition.
The Ninth Circuit apparently couldn’t wait. In Marks v. Crunch San Diego, LLC (pdf), a Ninth Circuit panel held that an ATDS is any “device that stores telephone numbers to be called,” “whether or not the numbers were not generated by a random or sequential number generator.”
Continue Reading Ninth Circuit creates circuit split on what counts as an autodialer under the TCPA
New California Consumer Privacy Act increases the risk of additional data breach class actions
The California legislature made headlines on June 28 when it passed—and the Governor signed—AB 375, a sweeping new data privacy bill known as the “California Consumer Privacy Act.” As further described in our colleagues’ report, the Act grants broad new privacy rights to customers of certain companies doing business in California. In addition, the Act both provides for enforcement by the California Attorney General and creates a private right of action for some violations. Because of the latter feature, this new legislation may pave a new road to court for class actions in the wake of data breaches affecting California consumers.
Continue Reading New California Consumer Privacy Act increases the risk of additional data breach class actions
DC Circuit issues long-awaited TCPA decision and invalidates FCC’s 2015 autodialer and reassigned-number rules
Last Friday, a panel of the D.C. Circuit issued its decision in ACA International v. FCC (pdf). The decision, which arrived nearly 17 months after the oral argument, struck down key elements of the FCC’s controversial 2015 Declaratory Ruling and Order interpreting the Telephone Consumer Protection Act (TCPA).
Here are the key takeaways from the decision:
- The court held that the FCC’s broad definition of an automatic telephone dialing system (ATDS), which threatened to include all smartphones, is arbitrary and capricious, and required the FCC to reconsider its definition.
- The court overturned the FCC’s conclusion that a caller could be subjected to liability for calls placed or text messages sent to a phone number that had been reassigned after a “safe harbor” of a single errant call or text. Because the “safe harbor” ruling was arbitrary and capricious, the court concluded that the FCC was required to reexamine whether a caller should be liable for any calls or texts to reassigned numbers.
- The panel sustained the FCC’s rule authorizing consumers to retract their consent to receive autodialed calls or text messages through “any reasonable means.” But the panel decision notes that the FCC’s rule doesn’t speak to situations where parties have contractually agreed to a specific method of revocation.
Unless the FCC seeks further appellate review (which seems unlikely), the agency will be reconsidering the autodialer and reassigned-number issues. Notably, the composition of the FCC has changed since the 2015 order; the chairman of the FCC is Commissioner Ajit Pai, who dissented from the 2015 ruling.
We summarize the decision in detail below. In the meantime, we expect businesses facing TCPA litigation to take at least three possible approaches.
First, the D.C. Circuit’s decision reopens a number of questions that plaintiffs have argued were resolved by the FCC’s 2015 ruling, and parties will seek to litigate those issues.
Second, the FCC will have something new to say on each of the issues remanded to it by the D.C. Circuit, and businesses and trade associations will doubtless want to participate in that regulatory discussion—especially given their extensive experience on the receiving end of TCPA lawsuits.
Third, and relatedly, a number of courts will surely find it more efficient to wait for the FCC’s pronouncements on these issues before allowing TCPA litigation to proceed.