Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36For more information, please visit or 27 26 key Trends We continued to see new consumer class actions and individual actions filed under the TCPA, with industry projections that more than 5,000 TCPA lawsuits were filed across federal and state courts in 2016. Signifi- cantly, those actions resulted in a number of TCPA class action settlements, including a record $76 million class settlement set for final approval in early 2017. Despite the fact that many of these cases settled, in several cases defendants successfully argued that the individual nature of purported class claims made class adjudication infeasible. These successes suggest that arguments around prior express consent and other in- dividualized issues weighing against class certification are gaining traction as courts begin to appreciate the complexities of TCPA cases. Additionally, following the Supreme Court’s decision in Spokeo v. Robins, litigants and courts alike struggled to understand whether TCPA plaintiffs have suffered sufficient injury to have standing. Finally, the FCC continued to issue statements on the scope and application of the TCPA. 2016 Highlights FCC Enforcement Advisory No. 2016-06. On November 16, 2016, the FCC issued an enforcement advisory stating that “robotexts” (text messages sent using an auto-dialer to a cellular phone, pager, or other mobile device) are subject to the TCPA and may not be sent without the recipient’s express prior consent. The advisory states that when the text message includes advertising, the recipient must have given express prior written consent. Status of FCC Order 15-72 is Unclear, as ACA Int’l v. FCC Remains Pending. In 2015, the FCC significantly altered the TCPA legal environment with Order 15-72, which changed the rules and definitions governing reassigned wireless numbers, consent obtained via smartphone application downloads, and the definitions of “calls” and “auto-dialer.” Industry participants challenged the order in ACA Int’l v. FCC, No. 15-211 (D.C. Cir. 2015), and if the D.C. Circuit Court agrees with the plaintiffs and unwinds all or part of the order, the legal framework surrounding the TCPA will change again. With oral argument taking place in October 2016, a decision in the case is likely to come down by mid-2017. Supreme Court Holds Unaccepted Offer of Settlement Does Not Moot Case. In January 2016 the Supreme Court ruled, in a TCPA case, that an unaccepted offer of settlement functions as a legal nullity and does not moot a case, including in a putative class action. The Court did leave open the telephone consumer protection act Throughout 2016, Goodwin monitored regulatory and litigation developments affecting the Telephone Consumer Protection Act (TCPA). Of note this year were several FCC announcements concerning the TCPA’s requirements. Court cases recognized the individual nature of TCPA claims in purported class actions and grappled with whether bare violations of the TCPA constitute injuries-in-fact. CREDIT CARDS AUTO LOANS TELEPHONE CONSUMER PROTECTION ACT CONSUMER FINANCIAL & PROTECTION BUREAU question whether the outcome would be different if the defendant actually tendered the offered settlement amount to the plaintiff through a court or other enforceable mechanism. The Court also held that the defendant, which was acting as a government contractor at the time and was placing the calls at the government’s direction, could not enjoy qualified immunity from TCPA liability because its government contract required it to comply with the TCPA and it allegedly had failed to do that. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). Denial of Motion for Class Certification in Newhart v. Quicken Loans. In October 2016, the Southern District of Florida declined to certify a purported class of individuals claiming to have received autodialed calls to their cell phones. The court held that the issue of prior consent was a two-part inquiry that, based on the facts before it, first required individualized fact determinations regarding what level of consent was required for each call, and then individualized determinations about whether that consent had been obtained. The court concluded that these issues made class adjudication inappropriate. Newhart v. Quicken Loans Inc., No. 9:15-cv-81250, 2016 WL 7118998 (S.D. Fla. Oct. 13, 2016). Spokeo Arguments Result in Conflicting Interpretations of the TCPA: District of New Mexico Holds TCPA Violation is Sufficiently Concrete Injury. In a case involving ATDS calls to plaintiff’s cell phone, the defendant moved to dismiss for lack of subject matter jurisdiction, arguing that the plaintiff had not sufficiently alleged injury-in-fact because she had failed to allege any injury other than the defendant’s purported violation of the TCPA. The district court denied the motion, concluding that the TCPA’s prohibitions were substantive, rather than merely procedural, so an allegation of a statutory violation alone was sufficient to plead an injury under Spokeo. LaVigne v. First Community Bancshares, Inc., No. 1:15-cv-934, 2016 WL 6305992 (D.N.M. Oct. 19, 2016). Southern District of California Kicks Two TCPA Cases on Standing. In a pair of cases demonstrating the varied approaches courts have taken in applying Spokeo to TCPA cases, the Southern District of California dismissed two TCPA cases for failure to allege an injury. In Ewing v. SQM US, Inc., the court held that the plaintiff’s injury would have occurred even if the defendant had not used an ATDS and had instead called him manually, and therefore he failed to plead Article III’s injury requirement. In Romero v. Department Stores National Bank, the court dismissed the plaintiff’s complaint because she was unable to demonstrate that the use of an ATDS injured her in a way she would not have been injured had the calls been placed manually, and also rejected that a bare statutory violation could satisfy the injury requirement for standing. Ewing v. SQM US, Inc., No. 3:16-cv-1609, 2016 WL 5846494 (S.D. Cal. Sept. 29, 2016); Romero v. Dep’t Stores Nat’l Bank, No. 3:15-cv-193, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016). Looking Ahead to 2017 Far from clarifying the issue, Spokeo has only compli- cated the questions of injury and standing in TCPA cas- es. With decisions falling on both sides of the question of whether a statutory violation alone is sufficient to establish injury-in-fact, we expect in 2017 litigants and courts will continue to debate the proper application of Spokeo. Additionally, the scope of the TCPA may be changed again in 2017, depending on how the D.C. Cir- cuit rules in ACA Int’l v. FCC. If the court agrees with the plaintiffs it could unwind many of the broad rules and definitions introduced by the FCC’s July 2015 order. And finally, no matter the result in ACA Int’l, the TCPA landscape is likely to shift with the Trump administra- tion’s appointments of new FCC Commissioners who could scale back some TCPA regulatory provisions that have been particularly troublesome for the consumer finance industry. What to Watch Continued efforts to correctly apply Spokeo to TCPA | Impact of D.C. Circuit decision on FCC 15-72