Thomson Reuters contributor Alison Frankel interviewed me for an article she posted today on the class action cases pending during the current Supreme Court term. Here is a link to her article. For those who are not familiar with Frankel’s On the Case Blog, be sure to add it to your regular reading list. She is one of the best in the business.
Posts Tagged ‘TCPA’
Posted in Articles, Class Action Decisions, Supreme Court Decisions, tagged anosmia, campbell-ewald, class action, class certification, fcra, FLSA, picking off, rule 68, spokeo, statistics, TCPA, tyson on November 18, 2015 | Leave a Comment »
Posted in Articles, Commentary, Data Privacy Class Actions, tagged annihilating liability, bankrupting, class action reform, cmia, data breach, data privacy, FACTA, fcra, nominal damages, privacy class action, statutory penalties, statutory penalty, TCPA on April 11, 2013 | Leave a Comment »
My article for the University of Denver Law Review’s Online Edition entitled Statutory Penalties and Class Actions: Social Justice or Legalized Extortion? was posted today. The article discusses potential reforms to address the problem of class actions for statutory penalties giving rise to potentially annihilating liability in cases involving little or no actual harm. Please check it out. While you’re there, check out some of the other excellent content on a wide variety of legal topics that the DU Law Review has to offer in its online supplement to its regular print publication.
Posted in Class Action News, Class Action Trends, tagged arbitration, arbitration agreement, cell phone, class arbitration waiver, class certification, data privacy, dukes, FAA, fax, junk fax, mobile phone, privacy, privacy class action, robocall, scotus, stolt-nielsen, Supreme Court, TCPA, TCPA Class Action, wal-mart on December 19, 2012 | Leave a Comment »
My colleagues at BakerHostetler have put together some great content on several class action-related topics recently that readers should find interesting.
First, the Baker Hostetler Class Action Defense Team issued an executive alert today discussing the Supreme Court’s decision to grant certiorari in another case involving class arbitration waivers. The alert, titled U.S. Supreme Court Considers Arbitration Clauses and Class Actions Next Year, summarizes the issues to be addressed in Oxford Health Plans LLC v. Sutter. The alert was authored by newly elected Cleveland Partner Ruth E. Hartman and Class Action Defense Team Leader Ernie Vargo.
Another executive alert, titled Recent Trends in Class Actions for Telephone and Fax Solicitation and Advertising, was issued last week by the Privacy and Data Protection and Class Action Defense Teams. The alert, authored by my colleague in Denver, Justin Winquist, summarizes the latest trends in class action litigation under the Telephone Consumer Protection Act (TCPA).
Finally, my partner Casie Collignon authored a blog post yesterday with an update on the latest in the ongoing saga of Dukes v. Wal-Mart on remand following the U.S. Supreme Court’s decision. The post is entitled, California District Court Awaits Class Certification Motion in Wal-Mart.
Posted in class action reform, Class Action Trends, tagged AAA, american express, amex, arbitrability, arbitration, at&t, class arbitration waiver, concepcion, cosumer class action, federal common law, TCPA on May 10, 2012 | 6 Comments »
On May 1, we received the following comment in response to a post from last May entitled Will AT&T v. Concepcion Really Kill the Consumer Class Action?
It has been almost a year. Could someone tell me, in their opinion, what effect Concepcion has had on consumer class actions over the last 11 months?
According to a recent New York Times article by David Segal titled A Rising Tide Against Class Action Suits, the effect has been significant. The article cites a report from the consummer advocacy group, Public Citizen, which found 76 opinions relying on Concepcion as a reason to prevent class actions from “moving ahead.”
I have no reason to doubt the accuracy of the number of opinions cited in the Public Citizen report, and there is no doubt that Concepcion has had an impact on class action litigation, both in consumer class actions and in other subject matter areas. However, I would caution that simply looking at the number of class actions that have been unsuccessful due to class arbitration waivers does not tell the whole story. Here are a few observations to consider in assessing the impact of Concepcion:
- Concepcion has not been treated by the lower courts as foreclosing all arguments for declaring an arbitration clause invalid. A case in point is the Second Circuit’s recent decision in In re Amex III., which relied on the federal common law of arbitrability in declaring a class arbitration waiver invalid.
- Class action litigation has been on the decline in substantive areas that are not impacted by arbitration clauses, such as in securties class actions.
- There are many areas of consumer class action litigation that remain unaffected by arbitration clauses because they either involve claims where there may be no contractual relationship between the plaintiff and the defendant, including statutory penalty class actions such as TCPA class actions class actions and certain data privacy class actions, or they involve areas of the law where arbitration clauses are prohibited, including many insurance class actions. A careful review of the data may show that consumer class action litigation has simply shifted to these areas.
- Recognizing that arbitration clauses do not necessarily provide a magic talisman against class action litigation and that implementing an overly consumer-friendly arbitration clause may actually encourage litigation, not all companies have rushed to adopt arbitration clauses into their consumer contracts.
In summary, I would say that while Concepcion‘s ban on state laws invalidating arbitration clauses has become an important consideration in litigating consumer class actions, it has not brought about their end.
I’d love to hear what readers have to say about their own perspectives on this issue. Please feel to comment below.
Posted in Class Action Trends, Commentary, tagged annihilating, auto-dialer, class action, colorado, critchfield, FACTA, fax blast, giovanniello, kosher bagel munch, local banking products, madison county, predominance, robo-call, rule 23. 47 u.s.c. 227, shady grove, statutory penalty, superiority, TCPA, telephone consumer protection act, unsolicited phone calls on October 20, 2011 | 1 Comment »
One of the hottest substantive areas in consumer class actions these days is litigation under the Telephone Consumer Protection Act (TCPA), 47 U.S .C. § 227, sometimes called the “fax blast” statute, which prohibits unsolicited faxes and automated calls for the purpose of commercial solicitation. The TCPA has a statutory penalty provision that allows consumers to recover $500 for each violation. The ability to collect far more in statutory penalties than the actual damages caused by a given violation makes TCPA violations an appealing target for enterprising plaintiffs’ class action lawyers. The aggregation of thousands of claims together can create huge monetary exposure for defendants and the potential for easy settlements and the large contingent fees that comes with it. In this way, the TCPA is similar to other laws with statutory penalties, such as the Fair and Accurate Credit Transactions Act of 2003 (FACTA), which provides for statutory penalties against a company that produces credit card receipts with too much information on them.
Although it is a federal statute, the TCPA does not provide for federal court jurisdiction in private actions to enforce it. TCPA class actions may only be filed in or removed to the federal courts if there is diversity jurisdiction under CAFA.
This has naturally given rise to the question of whether state laws limiting class actions, such as § 901(b) of New York’s Civil Practice Law and Rules, which prohibits class actions for claims seeking statutory penalties, are applicable in federal court exercising diversity jurisdiction over TCPA claims. Before the Supreme Court’s decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., the Second Circuit Court of Appeals said yes. After the Supreme Court remanded for reconsideration in light of Shady Grove, the Second Circuit said yes again, reasoning that the TCPA’s language allowing private enforcement “if otherwise permitted by the laws or rules of court of a State” gave the states broad power to determine how TCPA actions may be prosecuted within their borders. The Third Circuit has disagreed with this conclusion, holding that State limitations on class actions do not apply in TCPA class actions filed in the federal courts. Given the Third Circuit’s view, defendants in at least some jurisdictions may have a strong incentive to oppose federal jurisdiction in TCPA cases.
Another question that arises from the peculiar federalist nature of the TCPA is whether a state or federal statute of limitations applies. Earlier this week, in Giovanniello v. ALM Media LLC, the Second Circuit answered this question and held that a shorter state law limitations period applied rather than the 4-year federal catchall provision.
Several recent decisions have highlighted a split among both the state and federal the courts about whether TCPA claims should be permitted to be brought as class actions at all. Of particular note is the recent decision of the New Jersey Superior Court, Appellate Division in Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., which provides an excellent survey of the various state and federal court decisions on both sides of the issue. The court in Local Baking Products ultimately decided that class certification of TCPA claims was not appropriate. It reasoned that class actions are not a superior procedure for enforcing the TCPA because Congress had made statutory penalties available so that individuals would be incentivized to pursue vindication of their rights in individual actions in small claims or other state courts. In addition to lack of superiority, a common reason offered by other courts for rejecting class certification is that the question of whether faxes or calls were authorized is too individualized for common questions to predominate.
Earlier this month, however, the Supreme Court of Kansas upheld a lower court’s decision granting class certification in a TCPA case. In Critchfield Physical Therapy v. The Taranto Group, Inc., the court rejected both the argument that individual actions in small claims court would be superior to a class action and the argument that the question of consent was too individualized. In addition, the court rejected the argument that class actions would not be superior in light of the threat that aggregating thousands of individual statutory penalties together could create an “annihilating” judgment against the defendant that would be disproportionate to any harm to the class. A similar argument had been successful in a FACTA case in California federal court, but later reversed by the Ninth Circuit in Bateman v. American Multi Cinema, Inc.
Meanwhile, while a bill has been introduced in the U.S. house to “modernize” the TCPA by permitting certain informational robo-calls to be made to mobile phones, among other things, the bill would not modify the private enforcement provisions of the statute.
One quandary facing courts and counsel in TCPA class actions is how to give notice to consumers if a class is certified. Last month, a Madison County, Illinois judge ordered that notice of a class action for unsolicited faxes under the TCPA should be disseminated by. . .
. . . you guessed it . . .