Regulatory: New technologies, new risks
Before wireless telephones became ubiquitous, the Telephone Consumer Protection Act (TCPA) was a minor compliance issue for most companies. Today, however, the TCPA is a major litigation risk for companies in a variety of industry sectors.
November 14, 2012 at 03:00 AM
4 minute read
The original version of this story was published on Law.com
Before wireless telephones became ubiquitous, the Telephone Consumer Protection Act (TCPA) was a minor compliance issue for most companies. Today, however, the TCPA is a major litigation risk for companies in a variety of industry sectors. With regulators, courts and plaintiffs' class action attorneys all targeting TCPA violations, businesses should review their practices and stay apprised of the latest legal developments—especially when using predictive dialers, prerecorded messages, text messages and other technologies to interact with consumers on their mobile devices.
Passed in 1991, the TCPA imposes a series of restrictions on outbound communications, including voice calls and fax transmissions. Two provisions of the decades-old statute have become increasingly problematic for companies. First, the TCPA prohibits callers from using an “automatic telephone dialing system” (an autodialer) or a prerecorded or artificial voice message to call, inter alia, wireless telephone numbers, absent an emergency or the “prior express consent” of the called party. The Federal Communications Commission (FCC), which is charged with implementing the act along with courts such as the 9th Circuit, has determined that this restriction applies to both voice calls and text or short message service (SMS) messages.
Second, the TCPA separately prohibits callers from using a prerecorded or artificial voice message to call residential telephone numbers without prior express consent, subject to certain exceptions (e.g., calls that do not include a solicitation).
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Who Got The Work
Charles A. Weiss of Holland & Knight has entered an appearance for Rafael Badalov in a pending trademark infringement lawsuit. The suit, filed July 26 in New York Eastern District Court by Lee Law on behalf of Otter Products LLC, accuses the defendant of selling counterfeit phone cases and accessories bearing the plaintiff's 'OtterBox' trademark. The case, assigned to U.S. District Judge Nina R. Morrison, is 1:24-cv-05214, Otter Products, LLC v. Badalov et al.
Who Got The Work
Gibson, Dunn & Crutcher partners Benjamin Hershkowitz, Richard W. Mark and Casey J. McCracken and R. Scott Johnson, Thomas M. Patton and Cara S. Donels have entered appearances for Berkshire Hathaway Energy Co. and MidAmerican Energy Co., respectively, in a pending patent infringement lawsuit. The case, filed July 17 in Iowa Southern District Court by Nyemaster Goode PC and Caldwell Cassady & Curry on behalf of Midwest Energy Emissions Corp., asserts six patents related to sorbents for the oxidation and removal of mercury. The case, assigned to U.S. District Judge Stephen H. Locher, is 4:24-cv-00243, Midwest Energy Emissions Corp. v. Berkshire Hathaway Energy Company et al.
Who Got The Work
Michael J. Hickey and Michael L. Jente of Lewis Rice LLC have stepped in to represent Tidal Wave Management in a pending trademark infringement lawsuit. The case, filed July 18 in Missouri Western District Court by Husch Blackwell on behalf of Waterway Gas & Wash Co., accuses the defendant of using a mark that's confusingly similar to the plaintiff's 'Clean Car Club' mark. The case, assigned to U.S. District Judge Fernando J. Gaitan Jr., is 4:24-cv-00471, Waterway Gas & Wash Company v. Tidal Wave Management LLC.
Who Got The Work
Wachtell, Lipton, Rosen & Katz partners Lauren M. Kofke and William Savitt have stepped in to represent CVS Health and and its top officials in a pending shareholder derivative lawsuit. The complaint, filed Aug. 30 in New York Southern District Court by the Brown Law Firm on behalf of Chaya Sara Kaufmann, accuses the defendants of failing to disclose that they used misleading forecasts to set premium plans which overstated the profitability of the company's health care benefits segment. The case, assigned to U.S. District Judge Margaret M. Garnett, is 1:24-cv-06595, Kaufmann v. Lynch et al.
Who Got The Work
Robert L. Wallan from Pillsbury Winthrop Shaw Pittman has entered an appearance for Findlay Management Group in a pending complaint for declaratory judgment. The complaint, filed on Aug. 8 in Nevada District Court by Gordon Rees Scully Mansukhani and Skarzynski Marick & Black on behalf of Houston Casualty Co., seeks to declare that no insurance policy exists between Houston Casualty and Findlay due to there not being an adequate form of delivery and claims that if delivery was substantiated it is rescinded based on material omissions and misrepresentations. The case, assigned to U.S. District Judge Gloria M. Navarro, is 2:24-cv-01459, Houston Casualty Company v. Findlay Management Group.
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