To Defer or Not to Defer: Supreme Court Set to Hear Case That Could Decide Deference Standard in TCPA Cases

On November 13, 2018, the U.S. Supreme Court granted certiorari in the junk fax action, Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 883 F.3d 459 (4th Cir. 2018), which arose under the Junk Fax Prevention Act of the Telephone Consumer Protection Act (“TCPA”). Though the facts of the case centered on the definition of the term “unsolicited advertisement” under the 2006 FCC Rule, the high court’s eventual decision may not be just about fax liability. The Court is set to address wide-ranging issues concerning the interplay between the FCC’s interpretive authority under the Hobbs Act and the Supreme Court’s Chevron deference doctrine, which means the outcome of the Court’s holding may have far-reaching implications for pending and future litigation under the TCPA. Specifically, the Court’s decision may determine whether the FCC’s independent interpretation of the TCPA controls on an issue before a district court or whether district courts can independently devise their own interpretations under the Chevron doctrine. As we await the much-anticipated response and potential rule-making from the FCC based on its recent Public Notices concerning critical issues relevant for TCPA liability, the Supreme Court’s decision in PDR Network may prove to be a watershed decision in TCPA jurisprudence. Continue Reading

United States Supreme Court Clarifies Extent of American Pipe Tolling in Class Actions

Extended DeadlineOn June 11, 2018, the United States Supreme Court found that its prior decision in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (“American Pipe”) did not permit a putative class member, following the denial of class certification, to file a successive class action after the expiration of the statute of limitations.  In China Agritech, Inc. v. Resh, 584 U.S. ___ (2018), the Court limited the tolling of the statute of limitations for class action suits to a putative class member’s individual claims.  Justice Ginsburg delivered the opinion of the Court, in which Justice Sotomayor filed a separate opinion concurring in the judgment.

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United States Supreme Court Issues “Epic” Decision for Employers

Our colleagues at the Employment Law Worldview blog have written a new post analyzing the U.S. Supreme Court’s recent decision in Epic Systems v. Lewis. 

The Court’s decision came in the context of three consolidated cases (Epic Systems v. Lewis; Ernst & Young v. Morris; and NLRB v. Murphy Oil USA, Inc.) in which employees challenged their employers’ arbitration agreements that required them 1) to use arbitration as the sole forum for their employment disputes; and 2) prohibited them from joining other employees in a class or collective litigation action.You can read the full post on our Employment Law Worldview blog here.

DC Circuit Vacates Key Aspects of FCC’s 2015 Order Interpreting the Telephone Consumer Protection Act

On March 16, 2018, in a long-awaited and much-anticipated decision, a unanimous panel of the US Court of Appeals for the District of Columbia Circuit vacated two important rulings from the Federal Communication Commission’s 2015 declaratory ruling and order (FCC Order) concerning the Telephone Consumer Protection Act (TCPA): (1) the Commission’s “clarification” of the types of calling equipment that fall within the TCPA’s definition of “automatic telephone dialing system” (ATDS); and (2) the Commission’s treatment of reassigned wireless numbers for purposes of TCPA liability. On two other rulings, the Commission’s approach to revocation of consent and the scope of its exemption for time-sensitive healthcare calls, the Court upheld the FCC. Continue Reading

Dismissal of Landmark UK Class Action Against MasterCard Appealed; MasterCard Awarded £289,280 in Interim Costs

British Flag Judge's GavelTwo major developments in Walter Hugh Merricks CBE v. MasterCard Inc. – one of the UK’s first-ever opt-out class actions – have occurred in the past several weeks.  First, the proposed class representative Merricks appealed the dismissal of his application for a collective proceedings order (“CPO”) to both the Court of Appeal and the Administrative Court of the High Court.  Second, the Competition Appeal Tribunal (the “CAT”) – the body that dismissed Merricks’s CPO application – awarded interim costs to MasterCard in the amount of £289,280.  Continue Reading

Google Sued in UK “Class Action” Over Unlawfully Collecting iPhone User Data

Yesterday, a consumer watchdog in the UK filed an unprecedented representative action against Google for allegedly misusing personal data.  According to the group Google You Owe Us, between June 2011 and February 2012, Google bypassed the default privacy settings on over 5 million users’ iPhones in the UK to collect user data unlawfully.

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Senate Votes to Overturn CFPB Arbitration Rule

Credit CardsLate last night, the US Senate voted 51 to 50 to repeal a Consumer Financial Protection Bureau (CFPB) rule prohibiting class action waivers in arbitration agreements.  All but two Republicans (Senators Lindsey Graham (SC) and John Kennedy (LA)) voted to repeal the CFPB’s arbitration rule while all Democrats voted against repeal.  Vice President Mike Pence broke the 50-50 tie.  In July, the House also voted to repeal the CFPB arbitration rule.  President Trump is expected to sign the resolution.  In a statement following the Senate vote, the President said:  “By repealing this rule, Congress is standing up for everyday consumers and community banks and credit unions, instead of the trial lawyers, who would have benefitted the most from the CFPB’s uninformed and ineffective policy.”

The Senate vote came on the heels of a report from the U.S. Treasury finding that the CFPB’s arbitration rule would bring little benefit to consumers at great cost.  Earlier this fall, a review by the Office of the Comptroller of the Currency also determined that the CFPB’s arbitration would likely cause significant increase in credit costs to consumers.

The House and Senate voted to repeal the CFPB rule under the Congressional Review Act (“CRA”), which allows Congress to overturn a recently finalized agency rule by a majority vote.  Significantly, the CRA does not just repeal the rule.  Under the CRA, the rule cannot be “reissued in the same form” nor can a “new rule” that is “substantially the same” as the disapproved resolution be issued unless such action is specifically authorized by a law enacted subsequent to the disapproval of the original rule.

In light of these recent developments in Congress and the continued enforcement of arbitration agreements in the courts, it is more important now than ever to review your use of arbitration agreements and ensure that your agreements are up to date, include the latest guidance from courts, and contain the provisions you need, such as class action waivers.  Squire Patton Boggs has seasoned and experienced regulatory, litigation, and policy lawyers who can ensure that your arbitration agreements will be enforceable and effective in reducing litigation costs.

Ninth Circuit Splits From Other Circuits, Rules That 14-Day Deadline To Appeal Class Certification Order May Be Tolled by Motion for Reconsideration Filed After Deadline

Extended DeadlineAs regular class action litigators are aware, Rule 23(f) provides a potential safety valve in case of an adverse class certification order:  within 14 days, a party may file a petition to the applicable court of appeals seeking interlocutory appeal of the order.  However, if a litigant first files a motion for reconsideration after the 14-day time limit, and then – after the motion is denied months later – files a Rule 23(f) petition, is the appellate court without jurisdiction to consider the petition?  In Lambert v. Nutraceutical Corp., the Ninth Circuit answered that question in the negative, finding that the 14-day deadline is not jurisdictional, and therefore may be equitably tolled by such a motion.  Practitioners are advised, however, not to assume that other courts (particularly the Third Circuit, and likely the Tenth and Eleventh Circuits as well) would allow the Rule 23(f) deadline to be so tolled.

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Spokeo on Remand: The Ninth Circuit Finds Plaintiff’s FCRA Injury Is Concrete

Fifteen months after the U.S. Supreme Court’s landmark decision in Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540 (2016), the Ninth Circuit issued its opinion on remand.  The only question before the Ninth Circuit was whether the plaintiff’s allegations regarding his injuries – resulting from Spokeo’s alleged violation of the Fair Credit Reporting Act (the “FCRA”) – were sufficiently concrete to confer Article III standing.  In Spokeo III, the Ninth Circuit answered that question in the affirmative, finding that (1) the relevant provisions of the FCRA were established to protect the concrete interests of consumers like plaintiff, and (2) plaintiff alleged actual harm to his concrete interests resulting from Spokeo’s publication of an inaccurate report about him.

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