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Eighth Circuit Articulates New Ascertainability Standard in TCPA Class Actions

May 11 2016

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller, Courtney E. Torres

The Eighth Circuit Court of Appeals recently reversed a trial court’s decision not to certify a TCPA class on grounds that the proposed class was not ascertainable. In so doing, the Eighth Circuit declined to adopt the Third Circuit’s heightened standard for ascertainability as a “separate, preliminary requirement” for class certification. In the published opinion, the Court articulated its own “rigorous analysis of Rule 23 requirements, which includes that a class ‘must be adequately defined and clearly ascertainable.’”

In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., Plaintiff alleged that MedTox, a toxicology lab, transmitted a single-page fax to approximately 3,000 fax numbers, all recorded onto a log in the plaintiff’s possession. Plaintiff moved to certify a class that included all people in the four years prior to the action’s filing who received a fax message from Medtox regarding lead testing services that did not display a proper opt-out notice. The district court, in denying class certification, held the plaintiff failed to show ascertainability because it could not establish who was included in the class. The trial court focused on the potential for multiple claimants with respect to individual faxes, noting that the class could be seen as including both the subscriber of the telephone line on which the fax was received, and the intended recipient of the fax.

Circuit and District Courts Grapple with Questions Raised in the Wake of Campbell-Ewald v. Gomez

Apr 27 2016

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

In the wake of Campbell-Ewald v. Gomez, in which the Supreme Court held that an unaccepted Rule 68 offer of complete relief does not moot a plaintiff’s individual claims, the Third Circuit recently held that an unaccepted settlement offer “has no force” and therefore neither the plaintiffs’ individual claims nor the class claims in the suit were mooted by defendant’s offer of full relief prior to the filing of a motion to certify a class in Weitzner et al. v. Sanofi Pasteur Inc. et al. (Our previous analysis of Campbell-Ewald can be found here.)

Seventh Circuit Holds That TCPA Fax Regulations Do Not Impose Strict Liability for Actions of Contractors

Apr 26 2016

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793 (7th. Cir. 2016), holding that agency principles apply to TCPA claims in determining whether a fax sent by a third-party is sent “on behalf of” a principal. In doing so, the Seventh Circuit applied a uniform standard of agency principles to fax advertisements and calls under the TCPA despite the Federal Communications Commission’s (the “FCC”) previous assertions that vicarious liability for fax activity is subject to a different and potentially broader test. As previously discussed, other courts have declined to apply agency principles to decide this question, in effect applying different standards to fax and call activity.

The New EU-US Privacy Shield: a New Deal on Personal Data Transfers

Feb 04 2016

By Bruce J. Heiman, Michael J. O’Neil, Ignasi Guardans, Etienne Drouard

On February 2, two days after the deadline set by Europe for agreement on a new Safe Harbor governing US access to the personal data of European citizens, US and EU negotiators announced that they had agreed upon a framework for a new data sharing agreement, which will be called the EU-US Privacy Shield, to replace the Safe Harbor agreement struck down by the European Court of Justice on October 6, 2015.

US companies adhering to the EU-US Privacy Shield, which has yet to be formally adopted by both the EU Commission and the US Department of Commerce, will be able to receive, store and use personal data from Europe according to its terms.

The key elements of the EU-US Privacy Shield, which aims to assure that US protections of European personal data will be essentially equivalent to that provided in Europe, will be:

Safe Harbor 2.0 is Coming (This Week)

Feb 01 2016

US companies will need to take action to comply with any new agreement

By Bruce J. Heiman, Ignasi Guardans, Etienne Drouard

As we explained in detail in our Explanatory note of October 6 2015, and the webinar that followed held on October 9, the Schrems decision of the Court of Justice of the EU (CJEU) invalidated the US Safe Harbor program, and as a result of that most transfers of European personal data to the US done under that scheme became potentially illegal, if not covered by other legal options as described below.

Subsequently, Europe’s national Data Protection Authorities (DPAs), through the so called Article 29 Working Group, declared their intention not to bring enforcement actions against such EU – US data transfers before February 1, in order to give the US and EU time to reach a new agreement that could meet the objections raised by the CJEU.

Drones May Have Limited Range, But Regulatory Coordination Doesn’t Have To

Jan 22 2016

By Former Rep. James T. Walsh, contributor, and Rod Hall (Originally published in The Hill)

Safe integration of unmanned aircraft systems (UAS) into the national airspace is one of the foremost policy challenges of 2016. But while Capitol Hill has largely focused on the regulatory efforts of the Federal Aviation Administration (FAA), developments overseas will also shape the future of the dynamic UAS industry in the year ahead.

Just before the end of the year, the European Aviation Safety Agency (EASA) released its technical framework for UAS regulation across the 28 member states of the European Union. The framework will serve as the basis for rule-making activities at the EU and member-state levels in 2016 and 2017.

Your Money Is No Good Here: U.S. Supreme Court Holds That an Unaccepted Rule 68 Offer of Complete Relief Does Not Moot an Individual’s Claims, but Questions Remain

Jan 22 2016

By Andrew C. Glass, Gregory N. Blase, Jennifer J. Nagle, Jeremy M. McLaughlin, and Matthew Lowe

On January 20, 2016, the United States Supreme Court issued its decision in Campbell-Ewald Company v. Gomez regarding Rule 68 offers of judgment.[1] The Court held that a defendant cannot moot a case by merely offering complete relief to a plaintiff but left unanswered whether a defendant may do so by actually providing complete relief. Nor did the Court reach the question of whether a plaintiff can continue to seek to represent a putative class when his or her individual claims are mooted before a class is certified.

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Third Circuit Applies FCC’s New TCPA “Autodialer” Interpretation

Nov 05 2015

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

The Third Circuit recently applied the FCC’s new interpretation of “automated telephone dialing system” under the Telephone Consumer Protection Act (“TCPA”), which the Commission adopted this past summer in its highly controversial Telephone Consumer Protection Act declaratory ruling. The court in Dominguez v. Yahoo, Inc. vacated and remanded for further proceedings the district court’s order on summary judgment for Yahoo.

According to the Third Circuit, under the FCC’s newly-formulated definition, a system is an autodialer, and, in general, subject to the TCPA’s prohibition on autodialed calls to wireless numbers absent consent of the called party, if it is “able to store or produce numbers that themselves are randomly or sequentially generated ‘even if [the autodialer is] not presently used for that purpose.’” In adopting this definition and following the FCC, the Third Circuit focused on the “capacity” element that was at the crux of the FCC’s decision.

FCC Denies $3.3 Billion in Bidding Credits to AWS-3 Auction Winners, Requires Full Payment in 30 Days

Aug 20 2015

By Stephen J. Matzura and Marty Stern

The FCC unanimously adopted an order released earlier this week denying approximately $3.3 billion in small business bidding credits to SNR Wireless LicenseCo, LLC and Northstar Wireless, LLC, two entities financed by DISH Network Corporation that had won licenses in the AWS-3 auction which concluded in January (Auction 97). The auction, which had net winning bids of over $41 billion, significantly exceeded expectations and has been termed a “whopping success” from a revenue standpoint. In a statement issued prior to the order’s release, Commission Chairman Tom Wheeler stated that the entities “are not eligible for bidding credits” based on the Commission’s “fact-based analysis,” which “ensures that bidding credits only go to the small businesses our rules aim to serve.” The Commission’s order, released the following day, details the Commission’s analysis of whether DISH revenues should be attributed to SNR and Northstar based on its degree of control over the entities.

FCC Adopts Broadcast Incentive Auction Items, Clarifies Rules for Unlicensed and Microphone Operations in TV Bands

Aug 10 2015

By Stephen J. Matzura and Marty Stern

The FCC, at its open meeting last week, adopted a number of key items on the broadcast incentive auction, which it hopes to kick off by March 2016. If successful, the incentive auction will allow participating broadcasters to receive payment for relinquishing their spectrum and will make spectrum available in the 600 MHz band for auction to wireless providers.

Among a raft of complexities, the process will require that remaining broadcasters be “repacked” in the band from their existing channels. At the same time, it will provide for unlicensed use (think Wi-Fi and TV “white space” devices) of guard bands between wireless and broadcast frequencies, and what is known as the “duplex gap” — vacant space between the uplink and downlink operations of the new wireless providers in the band. In one contentious move, the Commission agreed to provide flexibility in the repacking process by authorizing as necessary the relocation of broadcasters to the duplex gap in particular markets, which would render that spectrum unusable for unlicensed operations in those markets. In a compromise brokered by Commissioner Rosenworcel, the Commission agreed to seek comment on whether it should preserve a vacant channel in such markets for unlicensed and licensed microphone use.

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