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Chevron Deference

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District Court (Cal.) Declines to Decertify Blast-fax TCPA Class but, Instead, Narrows the Class Definition

by Scott J. Hyman |

The procedural history in True Health Chiropractic Inc. v. McKesson Corp., No. 13-cv-02219-HSG, 2020 U.S. Dist. LEXIS 242297 (N.D. Cal. Dec. 24, 2020) is a handful, but sets the stage for Judge Gilliam’s ruling. Defendants were ordered to identify "each type of act that Defendants believe demonstrates a recipient's express permission to receive faxes (e.g. completing a software registration), (2)… Read More

SCOTUS Set to Decide Interplay Between Hobbs Act and Chevron Deference, if any, in TCPA Case on March 25, 2019

by Scott J. Hyman |

SCOTUS is using a TCPA case to decide whether the Hobbs Act requires district courts to accept the FCC’s pronouncements on the TCPA in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., Docket No. 17-1705.  On November 13, 2018, the SCOTUS granted certiorari after the Court of Appeals for the Fourth Circuit vacated a district court opinion on what… Read More

District Court (N.H.) Says It’s Bound by DC Circuit’s Ruling in Consolidated TCPA Case, Not the FCC’s Rule

by Scott J. Hyman |

In Menachem Raitport and Crown Kosher Meat Market, Inc. v. Harbour Capital Corporation, 2018 WL 2186469, at *4–6 (D.N.H., 2018), Judge McAuliffe found that he was bound by the DC Circuit's ruling on the FCC's Solicited Fax Rule, not the FCC's Rule itself. Raitport argues that “this Court lacks the jurisdiction to follow the D.C. Circuit’s decision [in Bais Yaakov]… Read More

District Court (Fla.) Refuses to Follow FCC’s TCPA Rulings on “Prior Express Consent” that Would Have Helped the Defendant

by Scott J. Hyman |

This one's got it all, TCPA fans.   In Mais v. Gulf Coast Collection Bureau, Inc., --- F.Supp.2d ----, 2013 WL 1899616 (S.D.Fla. 2013), Judge Scola decided not to follow any of the FCC regulations on the TCPA that otherwise apparently would have barred Plaintiff’s TCPA claims. The facts were as follows:  In 2009, Plaintiff Mark Mais went to the… Read More

District Court (Fla.) Denies Certification of TCPA Class Action Because Issue of Consent is Too Individualized; Cites 9th Circuit’s Meyer Decision

by Scott J. Hyman |

In Balthazor v. Central Credit Services, Inc., 2012 WL 6725872 (S.D.Fla. 2012), Judge Cohn denied certification of a TCPA class action, finding the issue of consent to be too individualized. The Court finds the reasoning of Hicks and Gene & Gene, LLC persuasive. Resolution of each putative class member's TCPA claim would necessarily involve an individual assessment of whether each… Read More

District Court (N.C.) Finds No Pre-emption of State Fair Debt Collection Laws; Allows TCPA Claim Past Pleadings Stage

by Scott J. Hyman |

In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws.  Judge Voorhees concluded that there was no pre-emption.  The facts were as follows: Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America,… Read More

6th Circuit Gives Chevron Deference to FCC’s Interpretation of TCPA; Finds Hobbs Act Did Not Deprive it Jurisdiction

by Scott J. Hyman |

  In Leyse v. Clear Channel Broadcasting Inc., --- F.3d ----, 2012 WL 3854783 (6th Cir. 2012), the Court of Appeals gave Chevron deference to the FCC’s ruling permitting the defendant’s advertisements.  In June 2005, a radio station owned by Clear Channel called Leyse's residential telephone number and delivered a prerecorded message advertising defendant’s radio services.  Leyse filed a class-action… Read More