Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

Editors

hunt_adam_blog_150x150.png

hunt_adam_common_640x280.jpg

hunt_adam_heroretina_2700x1160.jpg

hunt_adam_mobileretina_750x1040.jpg

hunt_adam_social_600x600.jpg

Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

preece_alex_blog_150x150.png

preece_alex_common_640x280.jpg

preece_alex_heroretina_2700x1160.jpg

preece_alex_mobileretina_750x1040.jpg

preece_alex_social_600x600.jpg

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

preovolos_penelope_blog_150x150.png

preovolos_penelope_common_640x280.jpg

preovolos_penelope_heroretina_2700x1160.jpg

preovolos_penelope_mobileretina_750x1040.jpg

preovolos_penelope_social_600x600.jpg

Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

newman_zak_blog_150x150.png

newman_zak_common_640x280.jpg

newman_zak_heroretina_2700x1160.jpg

newman_zak_mobileretina_750x1040.jpg

newman_zak_social_600x600.jpg

Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

hokanson_mitchell_blog_150x150.png

hokanson_mitchell_common_640x280.jpg

hokanson_mitchell_heroretina_2700x1160.jpg

hokanson_mitchell_mobileretina_750x1040.jpg

hokanson_mitchell_social_600x600.jpg

Mitchell Hokanson

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. Subscribe to receive the latest updates by attorneys from our nationally recognized Consumer Class Action and Product Liability practices.

Welcome to Class Dismissed

class-dismissed-welcome-image.jpeg

class-dismissed-welcome-image

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. 

Class Action

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

The latest news and insights from the nationally recognized Consumer Class Action and Product Liability practices of Morrison & Foerster.

Class Dismissed

  Linkedin

MoFo LinkedIN

Class Dismissed Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from Class Dismissed. Enter your email below to stay up-to-date.

Subscribe

Class Action and Product Insights for Your Business

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

TCPA

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Adam J. Hunt

More

Alexandra Preece Barlow

Mitchell A. Hokanson

Software Gains New Status as a Product Under Strict Liability Law

MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

Tenth Circuit Denies Challenge to CPSC Rule Regulating High-Powered Magnets

Ousted CPSC Democrats Fight Back Against President Trump

Setting Consumer Standards for Lithium-Ion Batteries Act

LinkedIN

In the final installment of our Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. Following the Supreme Court’s adoption of a narrow definition of “autodialers” (ATDS) in the 2021 case Facebook v. Duguid, courts across the country have continued to interpret that seminal decision. While the full impact of Duguid remains to be seen, guidance from several federal courts of appeals has begun to emerge regarding what systems actually qualify as autodialers, providing more certainty and predictability for businesses engaged in telephone and text marketing campaigns.Read our <a href="https://www.mofo.com/resources/insights/230209-privacy-litigation-2022-year-in-review-tcpa-litigation?utm_source=publication&utm_medium=email" target="_blank">client alert</a>.

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

figueroa_tiffani_blog_150x150.png

figueroa_tiffani_common_640x280.jpg

figueroa_tiffani_heroretina_2700x1160.jpg

figueroa_tiffani_mobileretina_750x1040.jpg

figueroa_tiffani_social_600x600.jpg

Tiffani B. Figueroa is a partner in the Litigation Department and is based in Morrison Foerster’s New York office. Her practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Tiffani B. Figueroa

Tiffani Figueroa

12_22_privacylitigationyearinreview2020_blog.jpg

Privacy Litigation 2022 Year in Review: TCPA Litigation

Privacy Litigation 2020 Year in Review: Data Breach Litigation

12_22_privacylitigationyearinreview2020_blog

In the final installment of our Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. Following the Supreme Court’s adoption of a narrow definition of “autodialers” (ATDS) in the 2021 case Facebook v. Duguid, courts across the country have continued to interpret that seminal decision. 

Privacy Litigation 2022 Year in Review: TCPA Litigation

Privacy

Nearly one year after Florida <a href="https://www.mofo.com/resources/insights/210706-tcpa-like-florida-law-takes-effect.html">introduced</a> a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. Supreme Court’s narrowing of the applicability of the federal Telephone Consumer Protection Act (TCPA)), Oklahoma has followed suit. The <a href="http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20ENR/hB/HB3168%20ENR.PDF" target="_blank">Telephone Solicitation Act of 2022</a> was signed by Governor Stitt on May 20, 2022, and it takes effect on November 1, 2022.To learn more, read our <a href="https://www.mofo.com/resources/insights/220607-another-state-imposes-prior-consent-obligations.html">client alert</a>.

Wiretap Act Class Action for Technology Company

BIPA Class Action for Social Media App

RICO and Fraud Class Action for Waste Management Company 

Copyright Class Action for AI Company

CCPA and Data Breach Class Action for Leading Software Company

TCPA and Other Class Actions for Major Technology Company

Wiretap Act Action Against a Major Consumer Electronics Manufacturer

cheung_tiffany_blog_150x150.png

cheung_tiffany_common_640x280.jpg

cheung_tiffany_heroretina_2700x1160.jpg

cheung_tiffany_mobileretina_750x1040.jpg

cheung_tiffany_social_600x600.jpg

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

oneill_julie_blog_150x150.png

oneill_julie_common_640x280.jpg

oneill_julie_heroretina_2700x1160.jpg

oneill_julie_mobileretina_750x1040.jpg

oneill_julie_social_600x600.jpg

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

12_30_privacylitigation_tcpa_tile_400x266_crosspost.jpg

Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

Privacy Litigation 2021 Year in Review: TCPA Litigation

12_30_privacylitigation_tcpa_tile_400x266_crosspost

Nearly one year after Florida introduced a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. S

Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

A circuit split has emerged over faxes offering “free” goods, money, or services and whether they constitute an “unsolicited advertisement” under the Telephone Consumer Protection Act (the TCPA).In a February decision, the Second Circuit held that under the plain text of the TCPA, an unsolicited fax to doctors and nurses inviting participation in a market research survey in exchange for money did not constitute an “unsolicited advertisement” under the TCPA. Bruce Katz, M.D., P.C. v. Focus Forward LLC, 22 F.4th 368, 374 (2d Cir. 2022). The court determined that the fax was not an “unsolicited advertisement” because it did not promote the commercial availability or quality of any property, goods, or services, as prohibited by the TCPA. Id. at 372.The Second Circuit’s ruling explicitly rejected the Third Circuit’s conclusion in Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). In that case, the Third Circuit considered a fax soliciting participation by the recipients in market research surveys in exchange for monetary payments. The court held that the fax was an “unsolicited advertisement,” reasoning that healthcare professionals have a particular need for protection from unsolicited faxes, and that “these firms are not offering compensation out of the goodness of their hearts—they do so for a commercial purpose, to increase the response rate of their surveys, i.e. they can buy more of what they desire.” Id. at 564. The Katz court explicitly disagreed with that argument, opining that “[t]he notion that such faxes might advertise the availability of a ‘service’—i.e., of the recipient’s participation in a survey—contorts the ordinary meaning of the statute too far.” Katz, 22 F.4th 368 at 373.While no other circuit court has weighed in on this split, two Fourth Circuit district courts quickly followed the Second Circuit’s lead. The District of Maryland held that a faxed invitation to a “Monthly Webinar Series,” which also provided a link to win an Amazon gift card by completing a webinar survey, “d[id] not advertise the availability of a good or service, but merely the opportunity to exchange goods or services.” Family Health Physical Medicine, LLC v. Pulse8, LLC, No. SAG-21-2095, 2022 WL 596475, *6 (D.Md. Feb. 28, 2022). And in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, the Southern District of West Virginia found that a fax offering a “free” eBook did not constitute an advertisement. No. 3:15-14887, 2022 WL 386097, *5 (S.D.W.Va. Feb. 8, 2022), appeal filed, No. 22-1279 (4th Cir. Mar 15, 2022). With the Carlton decision on appeal in the Fourth Circuit, we may soon see another federal appellate court weigh in on this circuit split.We will update this post as more circuits weigh in on this issue.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.
Alexandra litigates product liability matters involving medical devices, pharmaceuticals, autom

tcpathumnail.jpg

The Praxis of Faxes: Circuits Split on the Meaning of “Advertisement” Under the TCPA

The Praxis of Faxes: Circuits Split on the Meaning of “Advertisement” Under the TCPA

tcpa.jpg

tcpa

A circuit split has emerged over faxes offering “free” goods, money, or services and whether they constitute an “unsolicited advertisement” under the Telephone 

Appellate & Supreme Court

David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone Consumer Protection Act (TCPA)."Last year marked another year of important developments in the Telephone Consumer Protection Act (“TCPA”) landscape as lower courts issued conflicting interpretations of the ruling by the Supreme Court of the United States (“SCOTUS”) in Barr v. AAPC  (“AAPC”) and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five-year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer,” factual disputes about what satisfies that new definition may still need to be resolved on summary judgment."Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt9bcf813070fdf0ad/627315fadeee7329767e7644/220422-tcpa-litigation-review-update.pdf" target="_blank">full article</a>.

12_30_privacylitigation_tcpa_tile_400x266_crosspost1.jpg

TCPA Litigation Review and Update

12_30_privacylitigation_tcpa_tile_400x266_crosspost1

David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone C

TCPA Litigation Review and Update

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer”, factual disputes about what satisfies that new definition may still need to be resolved on summary judgment.The Dust Has Not Settled on Whether Defendants Can Be Held Liable for Robocalls Made Between 2015 and July 2020 Following SCOTUS’s Landmark Decision in AAPC.In the wake of the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), lower courts have continued to grapple with the question of whether plaintiffs can assert Telephone Consumer Protection Act (TCPA) claims for conduct occurring between 2015 and July 2020—the time period between when the government-backed debt exception amendment to the TCPA was passed and the date that the Supreme Court declared it unconstitutional. A split among district courts quickly emerged. One line of cases followed an early Eastern District of Louisiana decision, Creasy v. Charter Communications, Inc.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn1">[1]</a>, in holding that there could be no liability imposed for calls occurring during the contested five-year time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn2">[2]</a> But the majority of district courts declined to adopt Creasy’s reasoning, instead finding that AAPC did not negate the liability of parties that made robocalls during that time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn3">[3]</a>To learn more, read out <a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html">client alert</a>.

Privacy Litigation 2021 Year in Review: TCPA Litigation

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and 

Just a few months after the U.S. Supreme Court narrowed the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law that imposes broad prior consent requirements on phone and text solicitations and provides for statutory damages and a private right of action for violations.Read our client alert <a href="https://www.mofo.com/resources/insights/210706-tcpa-like-florida-law-takes-effect.html?utm_source=publication&utm_medium=email">here</a>.

tcpa_blog.jpg

TCPA-Like Florida Law Takes Effect

Just a few months after the U.S. Supreme Court narrowed the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law tha

TCPA-Like Florida Law Takes Effect

The Supreme Court has issued its much-anticipated ruling in Facebook v. Duguid, impacting many pending TCPA cases nationwide and providing guidance to the many businesses that engage in calling and texting campaigns. The TCPA generally requires an individual’s prior consent to use an automatic telephone dialing system (an “autodialer”) to call or text his or her mobile phone, including for non-marketing purposes. The definition of an autodialer is thus crucial to whether and when a business may call or text its customers, prospects, or even employees. Read our <a href="https://www.mofo.com/resources/insights/210405-supreme-court-ruling-limits.html?utm_source=publication&utm_medium=email">client alert</a>.

02_21_employmentlaw_blog_v1_image2.jpg

Much-Anticipated Supreme Court Ruling Limits the TCPA’s Definition of an Autodialer

Much-Anticipated Supreme Court Ruling Limits the TCPA’s Definition of an Autodialer

02_21_employmentlaw_blog_v1_image1.jpg

02_21_employmentlaw_blog_v1_image1

The Supreme Court has issued its much-anticipated ruling in Facebook v. Duguid, impacting many pending TCPA cases nationwide and providing guidance to the many 

Consumer Products

Retail

Mass Torts

In the final installment of our four-part Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. The Supreme Court struck down the TCPA’s government-backed debt exemption, leaving district courts to address five years of enforcement and liability under the provision that may now be reversible. Meanwhile, the courts’ understanding of auto-dialers (ATDS) continued to evolve, with the Supreme Court poised to provide clarity on whether ATDS includes any device that can “store” and “automatically dial” telephone numbers — a decision that will either broaden or significantly curtail the reach of the TCPA.

12_22_privacylitigationyearinreview2020_blog1.jpg

Privacy Litigation 2020 Year in Review: TCPA Litigation

12_22_privacylitigationyearinreview2020_blog1

In the final installment of our four-part Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. The Supreme Court str

Privacy Litigation 2020 Year in Review: TCPA Litigation

If a company enters an arbitration agreement with a consumer, can its future affiliate companies enforce the arbitration agreement even though the affiliate relationship did not exist at the time the consumer signed the agreement? The Ninth Circuit recently answered “no” in Revitch v. DIRECTV, LLC, __ F.3d __, 2020 WL 5814095 (9th Cir. Sept. 30, 2020), creating a split with the Fourth Circuit. The plaintiff, Jeremy Revitch, alleged that DIRECTV, a satellite television services company, placed prerecorded telemarketing calls to his mobile phone without his consent and in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). He filed a class action complaint against DIRECTV in 2018. Revitch did not have a service agreement with DIRECTV. He did, however, have a contract for mobile phone wireless services with AT&T Mobility LLC (“AT&T Mobility”) that contained an arbitration agreement, which he entered in 2011. The arbitration agreement provided that “AT&T [Mobility] and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to . . . claims arising out of . . . any aspect of the relationship between us, whether based in . . . statute . . . or any other legal theory.”  2020 WL 5814095, at *11. The contract’s definition of AT&T Mobility included all “affiliates.” Id. at *2. AT&T Mobility and DIRECTV became “affiliates” (i.e., companies under common ownership) in 2015 when AT&T Mobility’s parent company, AT&T, Inc., acquired DIRECTV. Accordingly, DIRECTV moved to compel arbitration of Revitch’s complaint pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”). The district court denied the motion on the ground that the arbitration agreement between Revitch and AT&T Mobility did not reflect the parties’ intent to arbitrate his claim against DIRECTV. DIRECTV appealed.The Ninth Circuit affirmed, holding that a valid agreement to arbitrate did not exist between Revitch and DIRECTV, a satellite television company that became an affiliate of AT&T Mobility three years after Revitch signed the wireless services contract containing the arbitration agreement. 2020 WL 5814095, at *5. The court reasoned that “absurd results follow from DIRECTV’s preferred interpretation,” which would require Revitch “to arbitrate any dispute with any corporate entity that happens to be acquired by AT&T, Inc., even if neither the entity nor the dispute has anything to do with providing wireless services to Revitch—and even if the entity becomes an affiliate years or even decades in the future.” Id. at *4. It thus affirmed based on its application of California’s “absurd results” canon of contract construction.   Judge O’Scannlain penned a concurring opinion, suggesting that even if the court analyzed the issue in terms of whether the arbitration clause in Revitch’s contract with AT&T Mobility encompassed his TCPA claim against DIRECTV, rather than asking whether a valid agreement to arbitrate exists between Revitch and DIRECTV, the court still would deny DIRECTV’s motion to compel arbitration. Judge O’Scannlain reasoned that, under the FAA, the claim to be settled by arbitration “must be one ‘arising out of’ the contract or transaction. By negative implication, the FAA does not require the enforcement of an arbitration clause to settle a controversy that does not arise out of the contract or transaction.” 2020 WL 5814095, at *7. Because, in his view, Revitch’s TCPA suit based on allegedly unsolicited advertisements for DIRECTV’s satellite television services is unrelated to Revitch’s contract for wireless services with AT&T Mobility, the suit does not “aris[e] out of” the contract and is not subject to the FAA. Id. at *10.Judge Bennett dissented, explaining that because “[n]either party disputes the existence and validity of the arbitration clause on which DIRECTV . . . relies,” the issue before the court is not one of contract formation, but one of scope: “‘whether the agreement encompasses the dispute at issue.’” Id. (citation omitted). In his view, “affiliates” includes DIRECTV because “[n]othing in the arbitration clause or in the dictionary definition of the word ‘affiliate’ confers any type of temporal scope to the term so that ‘affiliates’ should be read to refer only to present affiliates.” Id. at *11. “Because Revitch agreed to arbitrate ‘all disputes and claims,’” DIRECTV may compel arbitration under the agreement. Judge Bennett further noted that, “[e]ven if some ambiguity exists,” Supreme Court precedent would require the court to construe the agreement to apply to future affiliates and enforce the arbitration clause. Id. at *10 (citing Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1418 (2019) (“[A]mbiguities about the scope of an arbitration agreement must be resolved in favor of arbitration.”)). He further reasoned that the majority’s application of California’s “absurd results” canon disfavors arbitration agreements compared to other contracts and, therefore, contravenes the Supreme Court’s precedent in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341–42 (2011). 2020 WL 5814095, at *13.The Ninth Circuit’s decision creates a circuit split on this issue. Just two months ago, in a case involving substantially similar facts and the same arbitration clause, the Fourth Circuit concluded that the consumer-plaintiff formed an agreement to arbitrate with DIRECTV and that her TCPA claim “fit within the broad scope of that agreement, construed, as it must be, to favor arbitration.” Mey v. DIRECTV, LLC, 971 F.3d 284, 286 (4th Cir. 2020). Like Judge Bennett’s dissent, the Fourth Circuit concluded that the arbitration agreement “contains no explicit limitation on the term [affiliates],” and the term’s ordinary meaning includes present and future affiliates. Id. The Fourth Circuit thus concluded that plaintiff Mey formed an agreement to arbitrate with DIRECTV. Further, considering the arbitration agreement’s broad language (i.e., requiring arbitration of “all disputes and claims between us”), and applying the presumption in favor of arbitrability, the court concluded it must enforce the arbitration agreement. Id.Practice Pointers to Takeaway<ul><li>A company’s ability to rely on an arbitration clause in a later-acquired affiliate’s service agreement with a consumer will depend on the jurisdiction. Courts within the Fourth Circuit may enforce such arbitration agreements where the companies did not become affiliates until after the agreement was entered, while courts within the Ninth Circuit may not. It remains to be seen how other circuits will come out. </li></ul><ul><li>Companies should consider drafting arbitration clauses to cover future affiliates and subsidiaries expressly, since the Ninth Circuit opined that “[h]ad the wireless services agreement stated that ‘AT&T’ refers to ‘any affiliates, both present and future,’ we might arrive at a different conclusion.” Revitch, 2020 WL 5814095, at *4 (emphasis added).</li></ul><ul><li>In courts within the Ninth Circuit, all things being equal, a company’s future “successors” or “assignees” likely would have an easier time enforcing an arbitration agreement than a future “affiliate” would since an arbitration agreement’s reference to a “successor” or “assignee” necessarily contemplates an unknown future event. This is something to keep in mind when structuring acquisitions.</li></ul><ul><li>Finally, the court may have reached a different outcome if either DIRECTV or its dispute with Revitch had been materially related to the services provided under Revitch’s wireless services agreement with AT&T Mobility. In that regard, the enforcement of an arbitration agreement by an after-acquired affiliate likely is not entirely foreclosed in the Ninth Circuit.</li></ul>

10_12_classdismissed_blogimage1.jpg

Does a Consumer Arbitration Agreement Apply to a Company’s Future Affiliates? The Ninth and Fourth Circuits Disagree

Does a Consumer Arbitration Agreement Apply to a Company’s Future Affiliates? The Ninth and Fourth Circuits Disagree

10_12_classdismissed_blogimage.jpg

10_12_classdismissed_blogimage

If a company enters an arbitration agreement with a consumer, can its future affiliate companies enforce the arbitration agreement even though the affiliate rel

Arbitration

Barr v. Am. Ass’n of Political Consultants, Inc., 2020 WL 3633780, 591 U.S. __ (2020).[1]Earlier this month, the Supreme Court held, in a fractured decision yielding multiple concurring or dissenting opinions, that the 2015 government-debt exception to the Telephone Consumer Protection Act (the TCPA) permitting robocalls to cellphones solely to collect a debt owed to or guaranteed by the United States violated the First Amendment, affirming the Fourth Circuit’s decision. Id. at *2. Applying traditional severability principles, seven Justices concluded that, rather than invalidate the entire TCPA, the 2015 government-debt exception must be severed from the remainder of the statute. Id. The bottom line: the government-debt exception is gone; the rest of the TCPA remains.Questions Before the Supreme Court<ul><li>Is the government debt exception to the robocall ban to cell phones unconstitutional? YES</li><li>Is the exemption a content-based restriction requiring strict scrutiny? YES</li><li>If so, is severing the exemption from the TCPA the appropriate remedy? YES</li></ul>ReasoningThe initial question before the Court in its First Amendment analysis was whether the robocall restriction, with the government-debt exception, is content-based. Id. at *5. The Court answered in the affirmative because the law favored speech made for collecting government debt over political and other speech. Id. at *5. The Court rejected the government’s arguments that the TCPA drew distinctions based on speakers rather than content, that the legality of a robocall depends on whether a caller is engaged in a particular economic activity, not its content, and that if the TCPA is content-based, so are debt collection statutes. Id. Applying Reed, the Court reasoned that, because the government-debt exception is content-based, it is subject to strict scrutiny. Id. at *6 (citing Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015)). The Government conceded that it could not satisfy strict scrutiny to justify the differentiation between government-debt collection speech and other categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, etc., and the Court agreed. Id.Having concluded that the 2015 government-debt exception created an unconstitutional exception to the TCPA, the Court was left to decide whether to invalidate the entire statute, or instead to invalidate and sever the 2015 government-debt exception. Id. at *6. In its analysis, the Court rejected plaintiffs’ broader argument that the entire TCPA is unconstitutional. Plaintiffs argued that, because Congress was willing to carve out an exception for government debt, its credibility regarding an interest in privacy was undermined. Id. at *6–7. The Court reasoned, however, that “Congress’s continuing broad prohibition of robocalls amply demonstrates Congress’s continuing interest in consumer privacy.” Id. at *7.The Court ultimately determined that it must invalidate the 2015 government-debt exception and sever that exception from the remainder of the statute. Id. at *11. The Court relied on the text of the Communications Act’s severability clause and the presumption of severability. Id. The majority disregarded Justice Gorsuch’s suggestion that the decision provided “no relief” to plaintiffs, reasoning that invalidating and severing the government-debt exception properly addressed the unequal treatment underlying plaintiffs’ claim. Id. at *13. The Court noted that Justice Gorsuch’s remedy would result in harm to “tens of millions of consumers who would be bombarded every day with nonstop robocalls notwithstanding Congress’s clear prohibition of those robocalls.” Id.Justice Sotomayor concurred in the judgment, yet reasoned that strict scrutiny should not apply to all content-based distinctions. Id. at *14. However, she concluded that the government-debt exception still failed intermediate scrutiny because it is not “narrowly tailored to serve a significant governmental interest.” Id.Justice Breyer, with whom Justices Ginsburg and Kagan joined, concurred in the judgment with respect to severability and dissented in part. Id. at *14. Justice Breyer disagreed that the exception violates the First Amendment. Id. He reasoned that strict scrutiny was inappropriate and that intermediate scrutiny should apply. Id. at *15. Justice Breyer reasoned that not all content-based distinctions are subject to strict scrutiny regardless of context or practical effect. Id. at *19. He did agree, however, with Justice Kavanaugh’s conclusion that the provision is severable. Id.Justice Gorsuch, with whom Justice Thomas joined in part, concurred in the judgment in part and dissented in part. Justice Gorsuch agreed with Justice Kavanaugh that the government-debt exception violates the First Amendment. Id. at *19–20. However, he disagreed as to why and the remedial consequences. Id. at *20. Justice Gorsuch agreed that the exception is a content-based restriction that fails strict scrutiny, but reasoned that plaintiffs are entitled to an injunction precluding TCPA enforcement against them. Id. at *21.TakeawaysAlleged TCPA violations are the basis of an increasing number of lawsuits each year, and the statute appears to be here to stay.Because the TCPA is heavily litigated and lacks a statutory limitation or cap on the amount of damages that can be awarded for each violation, it can lead to tens of millions of dollars in potential exposure. Therefore, companies seeking to reduce their exposure to TCPA litigation should consult a legal professional for advice on compliance and mitigation of litigation risk.Morrison & Foerster has advised extensively on TCPA disputes and represented numerous Fortune 500 companies in TCPA litigation. Follow Morrison & Foerster’s Class Dismissed blog to stay informed on TCPA developments.[1] Morrison & Foerster filed an amicus brief in this case.

phone-gettyimages-598536226-600px_thumbnail.jpg

Federally-Backed Debt Collection Exception Not the Supreme Court’s Cup of T(CPA)

Federally-Backed Debt Collection Exception Not the Supreme Court’s Cup of T(CPA)

phone-gettyimages-598536226-600px_image.jpg

Barr v. Am. Ass’n of Political Consultants, Inc., 2020 WL 3633780, 591 U.S. __ (2020).[1] Earlier this month, the Supreme Court held, in a fractured decision yi