Blog Post

Significant Class Actions Decisions Under the Telephone Consumer Protection Act

Posted by: Harry Revell
April 06, 2007
Topic: Editorial

There have been some significant class actions decisions under the TCPA (Telephone Consumer Protection Act) recently.

As of Lampkin v. GGH, Inc., 146 P.3d 847, 2006 TCPA Rep. 1489 (Ok. App. Aug 22, 2006), states with appellate decisions approving TCPA class certification now outnumber states denying class certification by 2 to 1.  We have about 60 cases now certifying TCPA classes.

As you know, many of the cases cited in opposing TCPA class certification are federal trial court decisions (i.e. Kenro, Forman, etc.)  But in the last few weeks, two separate federal courts have certified TCPA class actions under CAFA (Class Action Fairness Act) and distinguished the prior cases.

1. Gene & Gene, LLC v. Biopay, LLC, 2006 TCPA Rep 1513, 2006 WL 3933312 (M.D. La. Dec. 20, 2006)

2. Kavu, Inc. v. Omnipak Corp., 2007 TCPA Rep 1514, 2007 WL 201093 (W.D.Wash. Jan 32, 2007)

The Kavu case is very encouraging as it is tracking exactly what I hoped would happen post JFPA (Junk Fax Protection Act of 2005).  Under the language we added to the JFPA, an EBR (Established Business Relationship) defense can't be asserted unless the advertiser gets the fax numbers in accordance with the rules. In the 2006 R&O, (para 15) the FCC adopted our suggestions with regards to the rules of what list sources could and could not be used to send junk faxes based on an EBR.  In essence, if you pay for the list of fax numbers from a list provider, you can't claim an EBR.

Harry Revell
1/30/2007


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