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Our previous post discussed the decision in Marshall v. CBE Group, Inc., which completely rejected the FCC’s broad interpretation of an ATDS and found in favor of the defendant. Since then, another district court in the Ninth Circuit has followed suit, but three others in the Eleventh Circuit have concluded that the FCC’s 2003 Order survives ACA Int’l. It could behoove some TCPA defendants to seek stays while this circuit split is sorted out or until after the FCC clarifies its position on the ATDS issue following ACA Int’l.
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California AG Leads Attack on Lead in Infant Formula

June 10, 2018 | Blog | By Daniel Herling

Fresh off a victory in the CA primary, California Attorney General Xavier Bacerra filed suit on June 7, 2018 against Nutraceutical Corporation of Park City, Utah and Graceleigh, Inc. dba Sammy’s Milk of Newport Beach, CA, alleging violations of California’s Proposition 65 and California’s consumer protection laws.
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As this space has addressed before (see here and here), the California Transparency in Supply Chain Act (Civ. Code section 1714.43), enacted in 2010, requires large retailers and manufacturers (those with worldwide sales in excess of $100 million) doing business in California to disclose on their websites.
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Yesterday, President Donald Trump nominated Peter Feldman to fill the fifth and final spot as Commissioner of the U.S. Consumer Product Safety Commission.
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Prop 65: GET THE LEAD OUT!

May 29, 2018 | Blog | By Daniel Herling

As this space has discussed on several occasions, there are many issues with California's Prop 65.
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Yesterday the U.S. Senate confirmed Dana Baiocco (pronounced “Bee Awe Co”) as a Commissioner for the U.S. Consumer Product Safety Commission with a term that runs through October of 2024.
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TCPA Regulatory Update: NANC Presents Call Authentication Report to FCC

May 14, 2018 | Article | By Russell Fox, Elana Safner

The North American Numbering Council (NANC), a federal advisory committee established by the FCC, delivered a call authentication report to the FCC on May 3. The report was developed by the Call Authentication Trust Anchor Working Group (CATA WG) and approved by NANC on April 27. It “details a framework for call authentication that can more quickly be established than various alternatives, while obtaining the broadest participation of industry.”
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Every month, robocalls make up the majority of Do Not Call registry complaints at the Federal Trade Commission (FTC). The FCC estimated that in March 2018 approximately 3 billion robocalls were placed. In an effort to combat these illegal robocalls, the Senate Commerce Committee and the House Energy & Commerce Committee each held a hearing regarding these illegal robocalls and asked witnesses for ideas on how to combat this rampant problem.

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TCPA Regulatory Update: Second FNPRM Comment Deadline Set

May 14, 2018 | Article | By Russell Fox, Elana Safner

Comments on the FCC’s Second Further Notice of Proposed Rulemaking (FNPRM) are due on June 7, and replies are due by July 9. The second FNPRM was adopted at the March Commission Meeting and seeks input on the adoption of a reassigned numbers database that businesses could check to avoid making unwanted calls to a new subscriber whose number was previously assigned to a consumer who had consented to receiving their calls.

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TCPA Regulatory Update: Notable Filings

May 14, 2018 | Article | By Russell Fox, Elana Safner

On May 3, the Peer-to-Peer Alliance (P2P Alliance) filed a Petition for Clarification asking the FCC to clarify that P2P text messages to mobile numbers are not subject to TCPA restrictions. It explained that P2P messaging is often used by universities, nonprofits, businesses, and political organizations to communicate with individuals with whom they already have a relationship.
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On April 23, the FCC and FTC hosted a joint expo aimed at stopping illegal robocalls through technological solutions. The expo showcased innovative technologies, devices, and applications that minimize or eliminate the number of illegal robocalls consumers receive. The expo was held one month after the FCC and FTC’s Joint Policy Forum on fighting illegal robocalls, and in between the Senate Commerce and House Energy & Commerce Committee hearings on the same topic.
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As we wrote in a previous post, on March 16, 2018 the US Court of Appeals for the District of Columbia Circuit released its highly anticipated decision in ACA International v. Federal Communications Commission. Among other things, the DC Circuit set aside the Commission’s explanation of which devices qualified as Automatic Telephone Dialing Systems under the Telephone Consumer Protection Act. Though the decision has been out for less than two months, courts in the Ninth Circuit have taken notice.
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TCPA Regulatory Update: Commission Releases and Actions

April 18, 2018 | Article | By Russell Fox, Elana Safner

On March 22, 2018, the Federal Communications Commission (FCC) adopted a Second Further Notice of Proposed Rulemaking (FNPRM) proposing the creation of a reassigned numbers database. Under the proposed rules, the FCC will ensure that a database is available to provide callers with the timely and comprehensive information they need to avoid calling reassigned numbers. The FNPRM also seeks comment on the kind of information that callers need from such a database, the best way for service providers to report this information, and whether the FCC should adopt a safe harbor from TCPA liability for callers who check the database.
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Roughly around this time last year, the U.S. Supreme Court issued its ruling in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), wherein the Court rejected the California Supreme Court’s finding of specific jurisdiction over mass tort claims filed by nonresidents.

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TCPA Regulatory Update: FCC Releases Second Further Notice of Proposed Rulemaking

March 20, 2018 | Article | By Russell Fox, Elana Safner

On March 1, 2018, the Federal Communications Commission (“FCC” or “Commission”) released a draft Second Further Notice of Proposed Rulemaking (“FNPRM”) aimed at combatting illegal robocalls through use of a reassigned numbers database. The full Commission will vote on whether to adopt the FNPRM at its monthly meeting on March 22, 2018.

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The U.S. Supreme Court’s Spokeo v. Robins decision held that plaintiffs do not have standing to sue under Article III based solely on technical violations of the Fair Credit Reporting Act. Ever since the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1536, defendants have filed motions to dismiss putative TCPA class actions for lack of subject-matter jurisdiction.
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The U.S. Court of Appeals for the District of Columbia released its long-awaited opinion on the Telephone Consumer Protection Act (“TCPA”), reversing in part and upholding in part the Federal Communications Commission (“FCC”) 2015 TCPA Declaratory Ruling and Order (“2015 R&O”).
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Prop 65 Preliminary Injunction and "Fake News"

March 5, 2018 | Blog | By Daniel Herling

A recent Federal Court decision on the issue of whether to grant a preliminary injunction in the ongoing saga of the appropriateness of adding the pesticide Glyphosate to the CA Prop 65 list has become the grist for the "Fake News" phenomenon.
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When a business is faced with a TCPA or a privacy class action, getting rid of the lawsuit is its number one priority. This is why it is important to entrust the case to highly experienced counsel, well versed in defending class actions. Together, the lawyers and the clients can work on developing the best approach for defending against TCPA allegations. The strategy varies widely, depending on the merits of the case and whether the plaintiff and their lawyers are open to an early and reasonable settlement. In many such cases, however, an early offer of judgment (a “Rule 68” offer) should continue to be a part of the case strategy from its early stage.

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CPSC Sues Britax over Stroller Wheel Detachments

February 19, 2018 | Blog | By Shawn Skolky

On Friday, February 16, the U.S. Consumer Product Safety Commission (“CPSC”) announced that it had voted 3-1 (along party lines) to authorize CPSC staff to file an administrative complaint against Britax Child Safety, Inc., (“Britax”) a global manufacturer of car seats, strollers, and other juvenile products.
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