Strict scrutiny just isn’t what it used to be. For the third time, a district court has applied strict scrutiny in analyzing the TCPA and found that the statute restricts no more speech than necessary to further a compelling governmental interest.
Consumer Financial Services Legal Update Blog
A District Court in Kentucky recently rejected the Consumer Financial Protection Bureau’s claim against a law firm brought under the Real Estate Settlement Procedures Act, granting the law firm summary judgment in connection with its activities with nine real estate joint ventures surrounding the sale of title insurance policies because the Court found that the law firm’s activities fell within RESPA’s safe harbor provision.
Case Update: In Consumer Data Breach Case, Eleventh Circuit Indicates Concern over Scope of FTC’s Enforcement Actions
On June 21, 2017, the Eleventh Circuit Court of Appeals heard oral argument in LabMD, Inc. v. FTC, Case No. 16-16270, a case that is being carefully watched to see if it will clarify the limits of the Federal Trade Commission’s authority to bring enforcement actions for consumer data security breaches under Section 5 of the FTC Act.
Just when you thought that the practical operational restraints imposed by the new Administration had limited (i.e., handcuffed) the Consumer Financial Protection Bureau’s ability to engage in new mischief-making (i.e., new rule-making), today the CFPB issued its arbitration rule.
This is the biggest TCPA news since the Omnibus—a silver bullet to defeat most revocation cases was hiding in plain sight the entire time: a party cannot unilaterally modify the terms of a written contract to suit itself and so cannot revoke consent when the contract gives a business the right to call the number.
Seventh Circuit Rejects Rule 67 Mootness Argument But Keeps Campbell-Ewald Full Deposit Maneuver Alive
Rien n’est eternel. Nothing lasts forever. In TCPAland, things don’t even last a week. Just days after a Chicago district court endorsed the tactic in A Custom Heating & Air Conditioning, Inc. v. Kabbage, Inc., the Seventh Circuit dealt the Rule 67 mootness maneuver—i.e. “pick off” play—a hearty blow.
“Junk Fax” Case Determined Not To Make Junk Law, Strengthens Post-Spokeo Standing and Rule 67 Mootness Arguments
In a world pushed forward by new technology, it’s a “junk fax” case that advances two case dispositive TCPA defense bar arguments: (1) a plaintiff lacks Article III standing post-Spokeo unless there is a sufficient injury-in-fact; and (2) a Rule 67 deposit moots a class action.
In his first written opinion, Justice Neil Gorsuch wrote in Henson v. Santander Consumer USA, Inc. that the Fair Debt Collection Practices Act does not apply to debt buyers like Santander under one of the definitions for “debt collector.” This decision has potentially broad ramifications for financial institutions that purchase debts for collection as part of their business. At the same time, the decision leaves the door open to potential future disputes under the remaining definitions under the FDCPA.
$283MM in Telemarketing Penalties: The Top 10 Things You Need to Know About the Big Dish Ruling This Week
On the heels of a crushing $60MM civil judgment in North Carolina two weeks ago, Dish was hit with a staggering $283MM in penalties in an epic ruling by Judge Sue E. Myserscough of the Central District of Illinois this week. The opinion offers a rare inside look at the thought process of Dish’s executives and compliance counsel—including the machinations of its executive working groups—as they struggle to comply with the FTC and FCC’s evolving telemarketing regulations.
On May 15, 2017, the Supreme Court issued a 5-3 decision holding that it is not a violation of the Fair Debt Collection Practices Act to file a proof of claim in bankruptcy related to a debt for which the statute of limitations has expired, resolving a previous circuit court split regarding the issue.
Last Wednesday, a federal district court in Arizona held that a TCPA plaintiff was compelled to arbitrate his dispute against the holder of his wife’s lease solely because his wife had agreed to an arbitration agreement in connection with the lease.
Browsewrap Disclosure Held Insufficient to Constitute “Prior Express Written Consent” Even for a Healthcare-Related Call
Folks involved with selling health insurance, or anything else for that matter, relying upon browsewrap website terms might want to give Sullivan v. All Web Leads, Inc. a careful read. Although the ruling took place at the pleadings stage, the Court’s approach to a complaint alleging calls made to individuals requesting health care quotes after submitting personal information on a website is important for industry participants to consider.
Judge Bumb Answers Key Question That No One Asked: TCPA Plaintiff Lacks Standing to Recover on Unanswered Calls
In Watkins v. Wells Fargo Bank, N.A., the Court denied defendant’s summary judgment motion, but stated its belief that a plaintiff can only recover for calls that are actually answered following the Supreme Court’s decision in Spokeo, Inc. v. Robins.