Justia Communications Law Opinion SummariesArticles Posted in Class Action
Blow v. Bijora, Inc.
Under the Telephone Consumer Protection Act (TCPA), an effective consent to automated calls is one that relates to the same subject matter covered by the challenged messages. Akira, a retailer, engaged Opt for text-message marketing services. Akira gathered 20,000 customers’ cell phone numbers for Opt’s messaging platform. Akira customers could join its “Text Club” by providing their cell phone numbers to Akira representatives inside stores, by texting to an opt-in number, or by completing an “Opt In Card,” stating that, “Information provided to Akira is used solely for providing you with exclusive information or special offers. Akira will never sell your information or use it for any other purpose.” In 2009-2011, Akira sent about 60 text messages advertising store promotions, events, contests, and sales to those customers, including Blow. In a purported class action, seeking $1.8 billion in damages, Blow alleged that Akira violated the TCPA, 47 U.S.C. 227, and the Illinois Consumer Fraud Act by using an automatic telephone dialing system to make calls without the recipient’s express consent. The Seventh Circuit affirmed summary judgment for Akira. Blow’s attempt to parse her consent to accept some promotional information from Akira while rejecting “mass marketing” texts construed “consent” too narrowly. The court declined to award sanctions for frivolous filings. View "Blow v. Bijora, Inc." on Justia Law
Dannenberg v. State
Plaintiffs filed this class action suit individually and on behalf of employees (and their dependent-beneficiaries) who began working for the State or its political subdivisions before July 1, 2003 and who had accrued or will accrue a right to post-retirement health benefits as a retiree a retiree’s dependent. Plaintiffs alleged that the State, the City and County of Honolulu, and the Counties of Kaua’i, Maui, and Hawai’i impaired Plaintiffs’ accrued retirement health benefits in violation of Haw. Const. art. XVI, 2. Specifically, Plaintiffs claimed that the State and Counties violated their statutory rights under Haw. Rev. Stat. 87 by not providing retirees and their dependents with dental and medical benefits that were substantially equal to those provided to active workers and their dependents. After a lengthy procedural history, the Supreme Court held that Plaintiffs’ accrued retirement health benefits have been diminished or impaired in violation of article XVI, section 2. Remanded for further proceedings. View "Dannenberg v. State" on Justia Law
Auto-Owners Ins. Co. v. Stevens & Ricci Inc
Relying on an advertiser’s claim that its fax advertising program complied with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, Stevens & Ricci allowed the advertiser to fax thousands of advertisements to potential customers on its behalf. More than six years later, Hymed filed a class action TCPA lawsuit, which settled with a $2,000,000 judgment against Stevens & Ricci. While that suit was pending, Auto-Owners sought a declaratory judgment, claiming that the terms of the insurance policy it provided Stevens & Ricci did not obligate it to indemnify or defend Stevens & Ricci in the class action. The Third Circuit affirmed summary judgment, finding that the sending of unsolicited fax advertisements in violation of the TCPA did not fall within the terms of the insurance policy. The “Businessowners Insurance Policy” obligated Auto-Owners to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The “advertising injury” deals only with the publication of private information, View "Auto-Owners Ins. Co. v. Stevens & Ricci Inc" on Justia Law
Alwert v. Cox Enterprises
Plaintiffs Andrew Alwert and Stanley Feldman brought putative class actions against Cox Communications, Inc. (Cox) claiming that Cox violated antitrust law by tying its premium cable service to rental of a set-top box. The district court granted Cox’s motions to compel arbitration, then certified the orders compelling arbitration for interlocutory appeal. The Tenth Circuit granted Plaintiffs permission to appeal. They argued that the arbitration order was improper because: (1) the dispute was not within the scope of the arbitration agreement; (2) Cox waived its right to invoke arbitration; and (3) Cox’s promise to arbitrate was illusory, so the arbitration agreement was unenforceable. Finding no reversible error, the Tenth Circuit affirmed, holding that the arbitration clause in Plaintiffs’ subscriber agreements with Cox covered the underlying litigation and that Cox did not waive its right to arbitration. The Court did not resolve Plaintiffs’ argument that Cox’s promises were illusory because the argument amounted to a challenge to the contract as a whole, which was a question to be decided in arbitration. View "Alwert v. Cox Enterprises" on Justia Law
Holtzman v. Turza
Attorney Turza sent fax advertisements to accountants. In 2013, the Seventh Circuit affirmed that these faxes violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, but reversed a plan to distribute a $4.2 million fund to the class members and donate any remainder to charity. Meanwhile, Turza posted a $4.2 million supersedeas bond. Invoking the common-fund doctrine, the district judge awarded class counsel about $1.4 million. TCPA authorizes an award of up to $500 per improper fax. The court ordered two-thirds of that sent to every class member. If some members fail to cash their checks or cannot be found, there would be a second distribution. The maximum paid out per fax would be $500. If money remains, the residue returns to Turza. The Seventh Circuit reversed in part. This is not a common-fund case; suits under TCPA seek recovery for discrete wrongs. If a recipient cannot be located, or spurns the money, counsel are not entitled to be paid for that fax. TCPA is not a fee-shifting statute. Turza is not required to pay the class’s attorneys just because he lost the suit. Distributing more than $500 per fax ($333 to the recipient and $167 to counsel) would either exceed the statutory cap or effectively shift legal fees to Turza. The $4.2 million represents security for payment, so once the debt is satisfied, the surplus can be returned to Turza. View "Holtzman v. Turza" on Justia Law
In re Certified Question (Deacon v. Pandora)
Peter Deacon, individually and on behalf of all others similarly situated, brought an action in the United States District Court for the Northern District of California against Pandora Media, Inc., which operated an Internet-based music-streaming program. In relevant part, Deacon claimed that Pandora violation of the Michigan preservation of personal privacy act (PPPA) by publically disclosing personal information concerning his music preferences. The federal district court ruled in favor of defendant, and under MCR 7.305(B), the United States Court of Appeals for the Ninth Circuit certified a question of Michigan law to the Michigan Supreme Court: "Has Deacon stated a claim against Pandora for violation of the VRPA by adequately alleging that Pandora is [in] the business of 'renting' or 'lending' sound recordings, and that he is a 'customer' of Pandora because he 'rents' or 'borrows' sound recordings from Pandora? " Having heard oral argument and considered the issues involved, the Michigan Supreme Court granted the Ninth Circuit’s request to answer its question. However, the Michigan Court limited the question to whether Deacon could be characterized under the PPPA as a "customer" of Pandora because at the relevant time he was a person who "rent[ed]" or "borrow[ed]" sound recordings from defendant. The Supreme Court concluded that Deacon was not such a "customer." View "In re Certified Question (Deacon v. Pandora)" on Justia Law
Paldo Sign & Display Co. v. Wagener Equities, Inc.
Wagener agreed to review proposed ads from MR, then received a fax from MR, including pricing and sample fax advertisements, and stating that MR would not send out ads unless Wagener returned an approved copy. During a follow-up call, Wagener stated that he did not like the samples. The caller agreed to provide a new sample and a list of potential recipients. Wagener wanted to verify that potential recipients were businesses that would be interested in his services and were located in the relevant geographical region. Wagener did not receive that list or a final ad and was surprised to find that a fax advertisement had been transmitted to thousands of recipients without his approval. Wagener immediately tried to contact MR but received no response. Wagener then learned that his employee had mistakenly mailed a check to MR. Wagener’s bank implemented a stop order. Wagener never heard from MR again. The Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C), subjects the sender of unauthorized faxes to a statutory penalty of $500 per violation. The ads at issue violated the Act. The district court certified a class of more than 10,000 plaintiffs. A jury found that Wagener had not “authorize[d] the fax broadcast transmission,” and did not “have direct, personal participation in the authorization of the fax broadcast transmission.” The Seventh Circuit affirmed, rejecting challenges to evidentiary rulings and jury instructions. View "Paldo Sign & Display Co. v. Wagener Equities, Inc." on Justia Law
Bridgeview Health Care Ctr., v. Clark
Clark runs Affordable Hearing in Terre Haute, Indiana. In 2006, Clark received calls from a B2B employee, who offered to market Affordable Hearing’s services by faxed advertisements. Clark agreed to try fax-advertising, approved the language of the ad, and verbally instructed B2B to send about 100 faxes to businesses within a 20-mile radius of Terre Haute. He did not know what it cost to send a fax, but thought the quoted $279 was reasonable. Trusting that Melville would send the 100 faxes as authorized, Clark never asked to see the list of fax numbers that B2B was using. Clark did not realize that B2B actually faxed 4,849 ad flyers to businesses across Indiana, Illinois, and Ohio. After Bridgeview received a fax ad outside Chicago, it sued under the Telephone Consumer Protection Act, which, unbeknownst to Clark, outlaws unsolicited fax ads. In granting summary judgment for class members located within 20 miles of Terre Haute, the district court gave the statutory penalty of $500 per recipient to 32 recipients within that 20-mile radius--a $16,000 judgment against Clark. The court held that Clark was not liable for the junk faxes sent more than 20 miles from Terre Haute. The Seventh Circuit affirmed class certification and the determinations of liability. View "Bridgeview Health Care Ctr., v. Clark" on Justia Law
Campbell-Ewald v. Gomez
The Navy contracted with Campbell to develop a recruiting campaign that included text messages to young adults who had “opted in” to receipt of solicitations on topics that included Navy service. Campbell’s subcontractor generated a list of cellular phone numbers for consenting 18- to 24-year-olds and transmitted the Navy’s message to more than 100,000 recipients, including Gomez, age 40, who claims that he did not "opt in" and was not in the targeted age group. Gomez filed a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(A)(iii), which prohibits “using any automatic dialing system” to send text messages to cellular telephones, absent prior express consent, and seeking treble statutory damages for a willful violation. Before the deadline for a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an FRCP 68 offer of judgment, which Gomez did not accept. The district court granted Campbell summary judgment, finding that Campbell acquired the Navy’s sovereign immunity from suit. The Ninth Circuit reversed, holding that Gomez’s case remained live but that Campbell was not entitled to derivative sovereign immunity. The Supreme Court affirmed. An unaccepted offer of judgment does not moot a case. Campbell’s settlement bid and offer of judgment, once rejected, had no continuing efficacy; the parties remained adverse. A federal contractor may be shielded from liability unless it exceeded its authority or authority was not validly conferred; the Navy authorized Campbell to send text messages only to individuals who had “opted in.” View "Campbell-Ewald v. Gomez" on Justia Law
Chapman v. First Index, Inc.
Chapman, proposed to represent a class, under 47 U.S.C. 227, the Telephone Consumer Protection Act, who received faxes from First Index despite not having given consent. First Index responded that it always had consent, though it may have been verbal (during trade shows or phone conversations). Discovery was conducted and experts’ reports submitted. Chapman asked the judge to certify a class of all persons who had received faxes from First Index since August 2005 (four years before the complaint was filed) without their consent. The court declined, ruling that the difficulty of deciding who had provided oral consent made it infeasible to determine the class. Chapman proposed a different class: All persons whose faxes from First Index either lacked an opt-out notice or contained one of three specific notices that Chapman believes violated FCC regulations. The court declined to certify that class, finding that Chapman had known about the potential notice issue from the outset of the litigation but had made a strategic decision not to pursue it earlier. Changing the focus of the litigation almost five years into the case was impermissible. The Seventh Circuit affirmed the decision not to certify a class, but vacated with respect to Chapman’s personal claim. View "Chapman v. First Index, Inc." on Justia Law