Honda called car owners to warn about dangerous Takata airbags. Its reward was to get sued by a class action lawyer over unsolicited calls under the Telephone Consumer Protection Act (TCPA) [U.S. Chamber Institute for Legal Reform]
Antonin Scalia’s work on telecommunications deregulation before he became a judge is not one of the more widely known parts of his career, but as director of a White House office on telecom policy in the 1970s he played a key role in promoting removal of old legal barriers to competition and innovation, which in turn laid the groundwork for the emergence of modern online data, voice, and entertainment delivery. This panel discussion at the Federalist Society Lawyers National Convention features Henry Goldberg, Richard Wiley, and Prof. Richard Epstein, with Texas Justice Don Willett moderating. At the very end of the Q&A period I ask a question from the audience, resulting in an exchange with Richard Epstein in which we reminisce about Scalia’s time as editor of Regulation magazine.
- “How to write an overlawyered email, in 4 easy steps!” [Inspired Law Blog]
- Fifth Circuit upholds conviction of Texas lawyer Marc Rosenthal over pattern of fraud including but not limited to suborning of false witness testimony;
- Emoticons/emojis begin arriving in court as evidence, a federal judge in Michigan having already been “asked to rule on the meaning of ‘:-P.'” [Amanda Hess, Slate]
- Disabled access regulations as hobble-thy-competitor method: “AT&T says T-Mobile and Sprint Wi-Fi calling violates disability rules” [ArsTechnica]
- From back in 2012, but missed: a law professor’s book assails fine print in contracts, and Scott Greenfield responds;
- So strange how many expert witnesses say they have no idea how much they make [Brendan Kenny, Lawyerist]
- Get those troops out of my house: “A symposium on the oft-neglected Third Amendment” [Ilya Somin]
A tribute to Section 230: “No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one; if you have other candidates for that honor you think more worthy, please do share them.” — David Post on the fateful, intermediary-immunizing “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This bar to liability, Post writes, helped make possible “virtually every successful online venture that emerged after 1996 — including all the usual suspects, viz. Google, Facebook, Tumblr, Twitter, Reddit, Craigslist, YouTube, Instagram, eBay, Amazon.”
New York attorney Todd C. Bank “sued Uber Technologies Inc. over its robocall campaign attacking New York Mayor Bill de Blasio over his proposal to limit the number of drivers.” Mr. Bank bills himself as the “Annoyance Lawyer.” Isn’t that term generic by now? [Bloomberg]
Lawyers continue to craft class actions (here, here, etc.) demanding hundreds of millions or billions of dollars from businesses over what are often inadvertent or gray-area violations of the Telephone Consumer Protection Act, which bans unsolicited phone communication. Consumerist Ellen Taverna of NACA, the National Association of Consumer Advocates, finds talk of abuse “ridiculous” since at the same time phone users continue to report a large volume of (often patently unlawful and TCPA-flouting) call activity. Because how could there simultaneously be the one and the other? [Alison Frankel, Reuters] Unrelatedly, class actions over TCPA have found an especially ironic target: “The American Association of Justice, the national trade association that lobbies on behalf of plaintiffs’ lawyers seeking new ways to sue, itself got sued under the TCPA – by some of its own members. The AAJ was named in a class action lawsuit related to a blast fax sent to its members by a third-party vendor.” [Bryan Quigley, U.S. Chamber Institute for Legal Reform]
“The Buffalo Bills have agreed to pay up to $3 million – largely in the form of debit cards redeemable only at the team store – to settle a class-action lawsuit that accused the team of sending too many alerts to fans who signed up for a text-messaging service.” Plaintiff Jerry Wojcik contended “that the team violated the terms of its text service by sending him 13 messages over two weeks when it promised to send no more than five per week. … He claimed in his suit that the extra texts violated the federal Telephone Consumer Protection Act, and he sought statutory damages of $500 per excessive message for negligent violations and up to $1,500 per message for willful violations.” His lawyers will pocket $562,500. [Buffalo News]
- Claimed prison guard punched him in face: “Man convicted in Chicago-area mass murder awarded $500,000” [WHAS, ABA Journal]
- Ken White “immediately repulsed and enraged” by Mayer-Brown-repped suit seeking removal of Glendale, Calif. “comfort women” memorial [Popehat]
- “Las Vegas: Man Sues Casino After $500k Loss ‘While Drunk'” [Sky News]
- Regulators blame everyone but selves: “Drug Shortages Continue to Vex Doctors” [Sabrina Tavernese, NYT on GAO report, earlier here, here, etc., etc.]
- Former Virginia attorney general Ken Cuccinelli to speak tomorrow on “dereliction of duty” of AGs who decline to defend laws deemed unconstitutional, hope someone brings up this and this [more background; and his successor Mark Herring’s view]
- Oregon: “Portland State University will pay $161,500 to settle a lawsuit claiming it discriminated against disabled students who have service animals.” [AP/KOIN] Laws make it dangerous for business owners to draw line between legitimate, fake service dogs [L.A. Times]
- Not The Onion: Canada telecoms regulator pushes XX cable channels to run more Canadian content [CBC, National Post]
Many firms are being sued for contacting their own customers via cell.
In 2001, Ms. Wahlquist [defense lawyer Becca Wahlquist of Manatt, Phelps] was involved in a class-action fax-telemarketing case against DirecTV that awarded a year of free service as part of the settlement. In 2004, when the court-appointed class administrator sent fax notices about the award to the class, DirecTV was sued again on the ground those notices violated the TCPA as well.
DirecTV won the case, but Ms. Wahlquist was shocked. “Everyone is sitting ducks,” she said.
Douglas Walburg faces potential liability of $16-48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.
Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.
The Federal Communications Commission has now taken the position that a federal enactment known as the Hobbs Act “prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit.” The Cato Institute has joined the National Federation of Independent Business in an amicus brief seeking Supreme Court certiorari, supporting Walburg’s position “that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.” [Ilya Shapiro, Cato]