ATDS, WTF? The DC Circuit Dismantles the FCC’s 2015 TCPA Order

Author: Mark S. Eisen

Following the FCC’s 2015 Telephone Consumer Protection Act Omnibus Order, following ten consolidated appeals of the Order filed shortly thereafter, and following an oral argument in 2016, on March 16, 2018 the DC Circuit issued its long-awaited opinion dismantling the Order.  Unfortunately, the DC Circuit did not do much more than tell the FCC that many of its rulings were arbitrary and capricious—in other words, the Court did not itself provide definitive interpretations.  Now, three years later, plaintiffs and defendants alike find themselves with infinitely more questions than answers, and with a long road to hoe back before the FCC. Continue reading “ATDS, WTF? The DC Circuit Dismantles the FCC’s 2015 TCPA Order”

This Time, It’s Personal: TCPA Personal Jurisdiction Ruling Severely Limits Nationwide Class Actions

It is no secret that there are certain jurisdictions that plaintiffs’ class action attorneys prefer to file suit, most notably, Chicago, Los Angeles, Miami and New York, to name a few.  While plaintiffs’ lawyers may have countless clients in those jurisdictions, rarely is the defendant they are pursuing physically resident in those jurisdictions.  In order to satisfy the personal jurisdiction requirements then, plaintiffs’ lawyers thus have to rely on specific jurisdiction—jurisdiction that arises out of the defendant’s suit-related contacts with the forum—not general jurisdiction—jurisdiction that exists (with limited exception) only in those forums where the defendant is incorporated or headquartered. Continue reading “This Time, It’s Personal: TCPA Personal Jurisdiction Ruling Severely Limits Nationwide Class Actions”

Biometrics: The Wave of the Future Sparks a Current Wave of Class Action Litigation

Authors: David S. Almeida, Mark S. Eisen and Courtney C. Booth

Brought about by an obscure state law passed nearly a decade ago—the Illinois Biometric Information Protection Act (740 ILCS 14/1)—the next wave of privacy class action litigation is here and in full-swing.  While an Illinois law, the BIPA is appearing in cases nationwide regarding the collection, storage and use of biometric information.  The BIPA, in short, regulates the collection and use of biometric information (i.e., iris scans, fingerprints, voiceprints and facial geometry).  The BIPA was enacted in 2008, and flew largely under the radar until an initial trickling of class actions, beginning with the first class action filed against Facebook in 2015, and followed shortly thereafter by lawsuits against Google, Shutterfly and Snapchat. Continue reading “Biometrics: The Wave of the Future Sparks a Current Wave of Class Action Litigation”

Benesch Ranks in BTI Litigation Outlook 2018

Benesch has been ranked in the top 20% of all law firms by corporate counsel for Class Actions in BTI Litigation Outlook 2018. Each year BTI reaches out to a strategically designed group of top legal decision makers at large organizations with $1 billion or more in revenue.

BTI Litigation Outlook 2018 is based solely on in-depth telephone interviews with leading legal decision makers. This comprehensive analysis trends data from more than 4,800 corporate counsel client interviews conducted over the span of 18 years.

Bittersweet: The Chicago Sweetened Beverage Tax Sparks Class Action Litigation

After a protracted legal fight, Cook County’s much maligned Sweetened Beverage Tax went into effect on August 2, 2017.  See County of Cook, § 74-850, et seq.[1]  In relevant part, the tax requires retailers of sweetened beverages to tax $.01 per ounce of sweetened beverage.  For bottled beverages, calculating the tax is fairly straightforward (though, as noted below, putative class action lawsuits over the taxation of bottled water have been filed against companies like PepsiCo and Walgreens).  For fountain drinks—which have caused the biggest litigation headache—the tax is calculated by the number of ounces the cup can hold.

Continue reading “Bittersweet: The Chicago Sweetened Beverage Tax Sparks Class Action Litigation”

Northern District Of Illinois Is Botching TCPA Fax Rule

Authors: David Almeida and Mark Eisen

Published in Law360

In 2006, the Federal Communications Commission enacted the so-called solicited fax rule under the Telephone Consumer Protection Act. This rule required certain byzantine language to appear at the bottom of every single fax advertisement informing recipients how to opt out of receiving future faxes, even if those faxes were requested (i.e., solicited) by the recipients. What is more, violations of this regulation are punishable by between $500 and $1,500 per fax in statutory damages.

View the full article here.

In a Scorching Opinion, Sixth Circuit Refuses to Undo Class Action Settlement

Author: Jeremy Gilman (former Partner at Benesch Law)

Sometimes, appellate decisions are written in a purely clinical voice.  Other times, they’re infused with a dash of hot sauce.

Plaintiffs, who worked for defendants’ “Fourth Street Live” entertainment district in downtown Louisville, brought a putative class action against defendants in the Western District of Kentucky alleging violations of the Kentucky Wage and Hour Act relating to “their policies regarding off-the-clock work and mandatory tip-pooling.”  The court granted plaintiffs’ class certification motion.  Defendants then sought interlocutory appellate review but that was denied, as was their motion to reconsider.  Settlement discussions ensued, and the parties eventually reached agreement on the financial aspects.  It took them nearly another year, however, to agree on the non-monetary terms.  When that occurred, the parties filed a joint status report advising the court that they’d settled and that formal settlement documents would soon follow. Continue reading “In a Scorching Opinion, Sixth Circuit Refuses to Undo Class Action Settlement”