Reply Brief filed in Spokeo v. Robins – Oral Argument next on Nov. 2


In its reply brief in Spokeo v. Robins, petitioner Spokeo comes out of the gate with the consequential argument that for Robins to prevail, the Supreme Court must accept his position that every violation of a statutory right qualifies as an injury-in-fact. Indeed, the case is much larger than Fair Credit Reporting Act (FCRA) inaccuracies at issue; the case implicates any federal statute in which a violation triggers automatic penalties including the Real Estate Settlement Procedures Act (RESPA), the Truth in Lending Act (TILA) and the Telephone Consumer Protection Act (TCPA). Continue reading this entry

D&O Policies: A Possibility for TCPA Coverage?


Business is booming for plaintiffs’ attorneys wielding the Telephone Consumer Protection Act (TCPA). The TCPA restricts unsolicited telemarketing by fax, voice calls and text messages. Violations can trigger liability of at least $500 for each fax, text or call. The prospect of lucrative recoveries has proven to be attractive, with the volume of TCPA class actions steadily rising for almost a decade. Settlements often run in the millions or multi-millions of dollars. In fact, plaintiffs’ attorneys have broken records for TCPA settlements the past two years in a row (securing settlements of $32 million from Bank of America in 2013, and a staggering $75.5 million from Capital One and three debt collectors in 2014).

TCPA class action lawsuits pose a substantial risk to just about any business with a marketing budget. Many businesses have sought insurance coverage for TCPA claims under their commercial general liability (CGL) policies, but have met with only mixed success. While some courts have found coverage for TCPA claims under CGL policies, CGL insurers have increasingly added explicit TCPA exclusions to their policies, cutting off that source of coverage.

Some TCPA defendants have turned to their Directors and Officers (D&O) policies in an effort to find coverage. D&O policies cover officers, directors and often the corporation itself for “wrongful acts,” subject to various coverage exclusions. Continue reading this entry

Response from Robins in the Spokeo Case at the U.S. Supreme Court


This week, the respondent in Spokeo v. Robins filed his merits brief. The main thrust of the brief challenges Spokeo’s assertion that Robins lacks standing without “real-world” injury. Instead Robins argues that he meets the Constitution’s “Case and Controversy” requirement on one of several bases to vindicate his statutory rights under the Fair Credit Reporting Act (FCRA). Continue reading this entry

Strip Club Beats TCPA Case With Human Intervention

The Sapphire Gentlemen’s Club in Las Vegas sends promotional text messages to its customers. Doing so involved multiple steps. First, a Club employee inputs telephone numbers into a mobile marketing website. He does this by either manually typing the number or by uploading or cutting and pasting an existing list of phone numbers to the website. Next, the Club employee types the message’s content, and designates the specific phone numbers to which the message would be sent. He would then click “Send” on the website in order to deliver the messages in real time or at some future date. Continue reading this entry

The FCC Broadens TCPA's Reach: More Lawsuits Ahead!


The Federal Communications Commission (“FCC”) issued its declaratory ruling and order addressing over 20 pending petitions on Friday, July 10, 2015. This new ruling effectively requires companies to make a fresh evaluation of their telephone technology and, in most cases, change existing policies and practices. Some of the rulings of general applicability are described in this post. Continue reading this entry