Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit vacated the district court's grant of summary judgment to Crunch Fitness on plaintiff's claim that three text messages he received from Crunch violated the Telephone Consumer Protection Act (TCPA). The panel held, in light of the DC Circuit's recent opinion in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018), and based on the panel's own review of the TCPA, that the statutory definition of automatic text messaging system includes a device that stores telephone numbers (ATDS) to be called, whether or not those numbers have been generated by a random or sequential number generator. Because the district court did not have the benefit of ACA International or the panel's construction of the definition of ATDS, the panel vacated and remanded for further proceedings. View "Marks v. Crunch San Diego, LLC" on Justia Law

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Plaintiffs, who are homeless or have recently been homeless, filed suit against the City seeking retrospective relief for their previous citations under the Camping Ordinance and Disorderly Conduct Ordinance. The panel held that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them. The panel also held that two of the plaintiffs may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right. These two plaintiffs have demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to Boise's homeless shelters. Accordingly, the panel affirmed in part, reversed in part, and remanded. View "Martin v. City of Boise" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for defendant in an action alleging that defendant violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227, by calling her repeatedly through an automatic telephone dialing system. The panel held that plaintiff, by completing and submitting a health insurance enrollment form, gave prior express consent to receive quality assurance calls. View "Fober v. Management and Technology Consultants, LLC" on Justia Law

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The en banc court affirmed the district court's denial of AT&T Mobility's motion to dismiss an action brought by the FTC alleging that AT&T's data-throttling plan was unfair and deceptive. After determining that the district court had federal question jurisdiction, the en banc court held that the Federal Trade Commission Act's, 15 U.S.C. 45(a)(1), (2), common-carrier exemption was activity-based, and therefore the phrase "common carriers subject to the Acts to regulate commerce" provided immunity from FTC regulation only to the extent that a common carrier was engaging in common carrier services. The en banc court also held that the FCC's order reclassifying mobile data service did not rob the FTC of its jurisdiction or authority over conduct occurring before the order. View "FTC V. AT&T Mobility, LLC" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of an action against Twitter, seeking civil remedies under the Anti-Terrorism Act. Plaintiffs filed suit against Twitter under 18 U.S.C. 2333(a), the civil remedies provision of the ATA, alleging that they were injured "by reason of" Twitter's knowing provision of material support to ISIS. The panel held that plaintiffs have not pleaded that Twitter's provision of accounts and messaging services to ISIS had any direct relation to the injuries plaintiffs suffered. The panel declined to reach the second question presented: whether Section 230 of Communications Decency Act of 1996 protects Twitter from liability. View "Fields v. Twitter, Inc." on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of claims brought by plaintiff under Washington state law, seeking compensation for telecommunications services it provided to AT&T and Verizon. In this case, plaintiff had neither a tariff nor a contract in place during a six-month period in which it provided telecommunications services to AT&T and Verizon. The panel held that plaintiff was subject to the tariff-filing requirements of Section 203 of the Communications Act, 47 U.S.C. 203, because it did not have a negotiated agreement, and plaintiff's state law equitable claims were preempted under Section 203. Finally, plaintiff failed to state a claim under the Washington Consumer Protection Act. View "CallerID4u, Inc. v. MCI Communications Services, Inc." on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. In this case, plaintiff received a text message from AC Referral, a non-party, that violated the TCPA. Plaintiff claimed that three lenders and two marketing companies ratified the unlawful text messages. The panel held that, although one of the marketing companies, Click Media, had an agency relationship with AC Referral, it was not bound by AC Referral's acts because it lacked knowledge that AC Referral was violating the TCPA and did not have knowledge of facts that would have led a reasonable person to investigate further. Therefore, Click Media could not be deemed to have ratified AC Referral's actions and was not vicariously liable. View "Kristensen v. Credit Payment Services" on Justia Law

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A liability insurance policy that unequivocally and broadly excludes coverage for invasion of privacy claims also excludes coverage for Telephone Consumer Protection Act (TCPA) claims. After Federal denied insurance coverage and declined to defend the Lakers in an underlying suit for invasion of privacy, the Lakers filed suit against Federal for breach of contract and tortious breach of the implied covenant of good faith and fair dealing. The Ninth Circuit affirmed the district court's dismissal of the suit under Federal Rule of Civil Procedure 12(b)(6). The panel held that a TCPA claim was inherently an invasion of privacy claim and thus Federal correctly concluded that the underlying TCPA claim fell under the insurance policy's broad exclusionary clause. In this case, Federal did not breach the policy, or the implied covenant of good faith and fair dealing, under any cognizable legal theory, when it declined to defend against or cover the underlying complaint. View "LA Lakers v. Federal Insurance Co." on Justia Law

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Plaintiffs filed suit against Royal under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, seeking to hold Royal vicariously liable for several telephone calls made by telemarketers employed by AAAP. The Ninth Circuit applied the ten non-exhaustive factors set forth in the Restatement (Second) of Agency 220(2) (1958), and found that AAAP's telemarketers were acting as independent contractors rather than as Royal's agents. Therefore, the court held that Royal was not vicariously liable for the telephone calls and the district court properly granted summary judgment in favor of Royal. View "Jones v. Royal Administration Services" on Justia Law