“Errant text messages cost the Buffalo Bills millions”—the Rise of TCPA Litigation

Blog- Phone ImageBy Craig Dammeier

In April of 2014, the Buffalo Bills settled a two-year federal court case in Florida for a cool $3 million dollars. Their mistake? Sending three more text messages over a 14-day period than a fan had agreed to. Mr. Jerry Wojcik visited the Bills’ website in 2012 and opted-in to receiving promotional text messages limited to “…three to five messages per week for a total of 10 to 12 weeks.” Instead, Mr. Wojcik received six text messages the first week and seven the second week. He subsequently filed a class action suit against the sports franchise alleging violations of the Telephone Consumer Protection Act (TCPA). The settlement agreement was as follows: each eligible class member was entitled to a share of $2.5 million worth of debit cards (only redeemable on the Bills’ website, a “win” for the franchise) and $500,000 in attorney’s fees. And it’s not just the Bills (nor the NFL) that faces this menace. The Tampa Bay Buccaneers and the LA-based Chargers, Clippers, and Lakers have all fallen victim to the heartless TCPA. These teams are being mercilessly-abused over a few extra promotional emails or texts—who will help them survive the night?

The TCPA, passed by the Federal Communications Commission in 1991, was originally intended to protect individuals against unsolicited calls and texts sent to wireless devices (and home phones) by “auto-dialers.” Auto-dialers are automatic telephone dialing systems that use prerecorded or artificial voice messages. The 1991 statute arose over complaints regarding the increased use of auto-dialers, specifically because the called parties could incur significant phone bills as a result of the unsolicited calls. In response, the TCPA provides statutory damages of $500 (for an “innocent” violation) and $1,500 for a willful violation of the statute.

In 2012, a subsequent amendment to the TCPA included text messages and other modern technologies into the statute and further precluded companies from making any call without the prior express consent of the consumer. It also required the companies provide an automated, interactive “opt-out” mechanism which would allow the consumer to stop all future messages. It is under this 2012 amendment that TCPA litigation has seen a historic rise in the court system.

While the statute was originally passed to protect consumer privacy and restrict companies from engaging in unwanted telemarketing communication practices, it has quickly become a favorite weapon of plaintiff’s firms as it creates liability for every company from startups to international banks (not just sports franchises). Furthermore, the Act enables mistreated consumers and their lawyers to collect massive class action settlements. Bank of America settled its TCPA class action for $32 million (the culmination of six pending TCPA litigation matters), HSBC was granted judicial approval of a $40 million settlement in 2015, and Western Union agreed to pay $8.5 million the same year. The potential payout has created a frenzy amongst plaintiff’s firms, with several creating sub-groups that specifically handle TCPA class actions. The rise in TCPA litigation has not gone un-noticed by the Judiciary either: “This is the second multi-million-dollar class action settlement this court has reviewed and addressed in the last three weeks in which the plaintiff class has sued credit card companies for violations of the Telephone Consumer Protection Act.”

In short, the sharks are circling and each bite provides larger and larger settlements for Americans whose consumer rights have been violated (along with attorney’s fees, of course).

Marshawn Lynch: Return of the Beast

MarshawnBy Tyler Quillin

Retired Seahawks legend, Marshawn Lynch, is rumored to be interested in coming out of retirement. But in a curious turn of events, the veteran running back is not interested in returning to play for his former team, the Seattle Seahawks, where he won an NFL championship in 2014. Rather, after meetings with his hometown team, the Oakland Raiders, Lynch may be interested in returning to the gridiron to don the silver and black. Continue reading

SCOTUS to Weigh in On Constitutionality of Offensive Trademarks

wa-redskins

Another Controversial Trademark: The Washington Redskins

By Adam Roberts

Simon Shao Tam named his band ‘The Slants,’ to make a statement.  He wanted to address cultural issues and discussions regarding race in society.  This type of free speech is generally considered foundational to the protections of the First Amendment.  But, Tam was denied this right.

In In Re Tam, the U.S. Patent and Trademark Office (USPTO) denied Tam’s registration for ‘The Slants,’ finding that a “substantial composite of persons of Asian descent would find the term offensive.”  Tam appealed his case to the Federal Circuit Court of Appeals who overturned the decision.  In her opinion, Judge Kimberly Moore expressed that the statute on which the Government relied – Section 2(a) of the Lanham Act – was unconstitutional under the First Amendment.  The court held that discrimination against content-based private speech is subject to strict scrutiny, which means the Government must present a compelling interest to restrict this kind of speech.  The Government’s interest in excluding speech they determined offensive was considered illegitimate to the court, and a judgment was entered in favor of Tam.

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Standing Room Only: The Limited Consumer Market for Ticket Sales

sold outBy Alex Bullock

Many sports and music fans find it difficult or expensive to get tickets to see their favorite team or band play live. Consumers face the challenge of finding an available ticket, and the tickets they do find are often more than what they are willing to pay. It almost feels like the system is built to favor ticket sellers and resellers. Enter New York attorney general Eric Schneiderman.

Schneiderman recently released a 43-page report entitled Obstructed View: What’s blocking New Yorkers from Getting Tickets that criticizes the ticket sales practices of sports and entertainment companies as unfair and deceptive. The report primarily focuses on consumer access to tickets. Continue reading

Negotiation, Arbitration, Deflation: Tom Brady’s Appeal Yet Another Fourth Quarter Comeback for Labor Unions

Deflategate PictureBy Grady Hepworth

What is there left to do for someone with four Super Bowl championships, two Super Bowl MVP awards, ten Pro Bowl selections, and who recently became the fourth NFL player in history to throw for over 400 touchdowns in a career? On September 3, 2015, Tom Brady added another accomplishment to his résumé: groundbreaking legal precedent.

In a controversial United States District Court decision, the Honorable Judge Richard Berman overturned a penalty imposed upon the New England Patriots’ quarterback, Tom Brady, through an arbitration mandated by the National Football League’s Collective Bargaining Agreement (CBA). Although the NFL has appealed the judgment (the Second Circuit Court of Appeals has coincidently scheduled the hearing for the week of Super Bowl 50), the district court’s decision has far-reaching implications. For Patriots fans, the decision likely provides hope that another championship title looms on the horizon. However, for the legal world, the district court’s decision may have significantly shifted the balance of power under the NFL CBA. Continue reading