Consumer Financial Services Legal Update Blog

TCPA Roundup: A Week of Blockbuster News from the Supreme Court, the Ninth Circuit, the FCC, and a Few District Courts

If you follow daily TCPA news like we do, your head is probably spinning from this week’s developments. We normally digest TCPA developments for our readers in a monthly e-newsletter. (If you’d like to join this list, please drop us a line.) November has delivered some blockbuster news, however, and we decided to highlight some of the notable developments in this mid-month TCPA Roundup. SCOTUS...

Vizio Settles for $17 Million Claims That it Collected and Distributed Consumers’ Viewing Histories on Smart TV Device Without User Consent

On October 4, 2018, Internet of Things (“IoT”) device manufacturer Vizio Inc. agreed to settle (subject to court approval) a consolidated class action lawsuit alleging that the smart TV maker collected and sold customers’ viewing histories to third party advertisers without the customers’ consent for $17 million, in addition to agreeing to take additional affirmative steps to supplement its on-screen data collection practice disclosures. Reports that...

Fall is for Falling Leaves, Thanksgiving, and TCPA Omnibus II?

As this year speeds to a close, we are on pins and needles to see if the FCC will issue a ruling this Fall in the great ACA Int’l TCPA remand.  After all, the FCC provided only two weeks for comment in its latest Public Notice Seeking Further Comment, issued after the Ninth Circuit’s anachronistic ruling in Marks v. Crunch San Diego, LLC this September....

11th Circuit Rules on Article III Standing in FACTA Cases

On October 3, 2018, the 11th Circuit Court of Appeals issued a significant decision in a class action case regarding a plaintiff’s standing to sue for alleged violations of the Fair and Accurate Credit Transactions Act (“FACTA”). See Muransky v. Godiva Chocolatier, Inc., No. 16-16486, 2018 U.S. App. LEXIS 27980 (11th Cir. Oct. 3, 2018). FACTA is a 2003 amendment to the Fair Credit Reporting Act...

Circuit Split Pronounced by District Court’s Application of Statutory Definition of an ATDS

While recent TCPA coverage has focused on the Ninth Circuit’s landmark ruling in Marks v. Crunch, a subsequent ruling from a New Jersey District Court serves has a reminder that (thankfully) the Ninth Circuit remains an “ATDS” definition outlier. For more on Marks, please see Dorsey’s coverage here and Dorsey partner Scott Goldsmith’s interview with Law360 here. To recap, the TCPA prevents calls to cell phones...

Ninth Circuit Rules an ATDS Need Only Have the Capacity to “Store Numbers to Be Called” and Dial “Automatically”

In Marks v. Crunch San Diego, No. 14-56834, 2018 U.S. App. LEXIS 26883 (9th Cir. Sept. 20, 2018), a three judge panel found “the term ‘automatic telephone dialing system’ means equipment which has the capacity (1) to store numbers to be called, or (2) to produce numbers to be called, using a random or sequential number generator-and to dial such numbers automatically (even if the...

Financial Industry Groups Should Have a Pulse on the California Consumer Privacy Act of 2018: A Legislative Update on the Strictest Privacy Law in the Country

Financial institutions that are grappling with how the European Union’s General Data Protection Regulation (“GDPR”) may impact their U.S. operations should also be keeping a close eye on the California Consumer Privacy Act of 2018 (“CCPA”). The CCPA, or Assembly Bill (“AB”) No. 375, which was passed on June 28, 2018 and is set to take effect in 2020, mirrors some GDPR protections by providing...

Third Circuit to Debt Collectors: “Use Your Real Name”

If you are a debt collector calling to collect a debt and don’t use your “true name,” you may have violated Section 1692e(14) of the Fair Debt Collection Practices Act (“FDCPA”). That is one of the lessons from a recent precedential decision by the Third Circuit Court of Appeals. In Levins et al. v. Healthcare Revenue Recovery Group LLC, the Third Circuit reversed a New...

Callers Beware: Direct Drop Voicemails Fall Within the Purview of TCPA Liability Says District Court

Is a direct drop voicemail a “call” under the TCPA, as compared to a text message, which we know does constitute a call?  While the FCC has yet to weigh in, in the first judicial opinion on the subject, a federal court in the Western District of Michigan found they were in Saunders v. Dyck O’Neal, 17-cv-335, 2018 U.S. Dist. LEXIS 121076 (W.D. Mich. July 16, 2018).

3rd Circuit Grants Summary Judgment in Favor of Yahoo! in Reassigned Phone Number Class Action

In a much anticipated opinion and big defense victory, the 3rd Circuit granted summary judgment this week in favor of Defendant Yahoo in a reassigned number class action case involving thousands of text messages to Plaintiff’s cell phone using an autodialer.  The Court noted that lawsuit has always depended upon Plaintiff’s assertion that Yahoo’s Email SMS Service was an “automatic telephone dialing system,” i.e., an...

FTC’s Data Security Authority Curbed by 11th Circuit

The Federal Trade Commission (“FTC”) has long been considered the agency best suited to regulate data security. The Eleventh Circuit dealt a serious setback to that authority yesterday in LabMD v. FTC, No. 16-16270, striking down its attempt to subject LabMD to proscriptive future data security measures. With the release of this opinion, companies now have a variety of new tools to push back against...