It has been eight months since the Supreme Court of the United States decided, in Facebook v. Duguid, that the federal Telephone Consumer Protection Act’s (TCPA) outdated definition of an automated telephone dialing system (ATDS or autodialer) did not cover devices—like most modern phones—which can store numbers that are not randomized. This decision resolved a long-standing circuit split over how to interpret the TCPA, but it has not led to the clarity that many companies desired.

While courts have started applying the narrowed ATDS definition under Duguid, companies engaged in telemarketing are not yet in the clear as many had initially thought in the immediate aftermath of Duguid. A number of trends have emerged that give new teeth to TCPA-like claims, including a spike in cases at the state level, novel legal theories, and a focus on other aspects of the TCPA. Moving into 2022, we expect a continued evolution in complaints brought under state telemarketing laws, and we might also see legislation or FCC guidance intended to update the TCPA so that it applies to modern dialing technologies.

Continue Reading The TCPA, State Analogues, and the Future of Telemarketing Litigation

On June 3, 2021, in a 6-3 decision that created a diverse majority—uniting the most recent conservative additions—Justices Barrett, Kavanaugh, and Gorsuch—with the more liberal Justices Breyer, Sotomayor, and Kagan, the Supreme Court resolved a split among the Circuit courts regarding the Computer Fraud and Abuse Act (the CFAA), The language of the CFAA creates

On Thursday, April 22, the Supreme Court released a unanimous decision holding that the Federal Trade Commission’s authority under Section 13(b) of the FTC Act does not grant the agency the right to seek equitable monetary relief such as disgorgement or restitution. The opinion, authored by Justice Breyer, held that the section only permits prospective injunctive relief. The import of this decision is that the FTC, in order to obtain monetary relief for unfair and deceptive trade practices, must first utilize its administrative procedures and can no longer seek such relief directly through a lawsuit in the federal courts.
Continue Reading Supreme Court Holds that FTC Cannot Obtain Disgorgement or Restitution Remedies under FTC Act Section 13(b)

Thursday, in a unanimous decision, the Supreme Court narrowed the potential scope of the Telephone Consumer Protection Act (“TCPA”), which has been fertile ground for plaintiffs’ attorneys seeking class-wide damages. Justice Sotomayor wrote the opinion in Facebook v. Duguid, which found that for telephone dialing equipment to constitute an “automatic telephone dialing system” (“ATDS”) under the TCPA, “a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” The upshot of this distinction is that computer systems that simply store phone numbers, not generated randomly or sequentially, for later dialing are not an ATDS.

Continue Reading Supreme Court Narrows Potential Scope of the Telephone Consumer Protection Act

The Supreme Court heard arguments Tuesday morning, March 30, regarding class certification related to Article III standing in TransUnion v. Ramirez, where only 25% of a certified class suffered injury.  In its briefing and in yesterday’s arguments, TransUnion argued that class certification should only apply where every class member has standing and the lead plaintiff does not allege atypical injuries.
Continue Reading Supreme Court Hears Arguments on FCRA Class Certification

The Supreme Court generally upheld the constitutionality of the Telephone Consumer Protection Act (TCPA) in Barr v. American Association of Political Consultants, Dkt. No. 19-631, issued on July 6, 2020.  Multiple stakeholders have been pressing on constitutionality of the TCPA, including advocates against “nuisance” robocalls, service providers weary of uncertain class action liability, and free speech advocates wanting less regulation.  The Supreme Court determined that only an exception to the TCPA permitting automated government debt collector calls was an unconstitutional restriction on free speech.  To remedy this violation, the Court rejected requests to find the entirety of the TCPA statute unconstitutional and instead affirmed the Fourth Circuit’s approach of severing of the offending exception from the statute.

The Supreme Court’s concerns about the governmental debt exception, however, could point to a vulnerability in other privacy statutes, such as the California Consumer Privacy Act, which exempts non-profits.  Going forward, privacy advocates will need to be particularly mindful of free speech concerns as privacy legislation grows.
Continue Reading Supreme Court Upholds Constitutionality of the TCPA But Severs the Government Debt Carve-Out on First Amendment Grounds