Page 3 - Complex Litigation

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Complex Litigation | MONDAY, JUNE 2, 2014 | S3

With Anchin’s Expertise, in TCPA cases, and it thus had held that First, often the defendant will allege that

state statutes of limitations rather than the a given communication is not an advertise-
Complex Issues are Simpliied.
federal four-year catch-all statute of limita- ment, but is merely an “informational com-
tions applied to TCPA claims. At the time munication,” which is not subject to the
Mims was decided, a petition for certiorari TCPA at all. Courts take a broad view of
was pending from a Second Circuit decision what constitutes an advertisement, however,
applying Connecticut’s two-year statute of including any information that promotes a
limitations in a TCPA case. Giovanniello company’s goods and services, even if they
v. ALM Media, 660 F.3d 587 (2d. Cir. 2011), are offered for free or the communication is
vacated and remanded, 133 S. Ct. 159 (2012), simply meant to induce the recipient to take

reversed in part, 726 F.3d 106 (2d Cir. 2013).3 some action like coming into the defendant’s
In light of Mims, the Supreme Court vacated business.6
and remanded to the Second Circuit, which Next, cases involving communications
found its prior jurisprudence on this issue made before October 2013 often turned on
was incorrect holding that the federal four- whether the “existing business relationship”
year statute of limitations applied instead exception applied. That exception permit-
of the shorter state law limitations period.4
ted certain types of communications to be
Since Giovanniello was a Connecticut sent, even without express permission of the

case, the question of the permissibility of recipient, if the parties had a pre-existing
class actions in New York was not at issue. business relationship. This exception is
However, a few months later, the Second Cir- not in the statute itself, but was contained
cuit had the opportunity to review the New
York class action question in light of Mims. In
Bank v. Independence Energy Group, 736 F.3d
660 (2d Cir. 2013), the Second Circuit decided In ‘Mims’, the Supreme Court
whether a plaintiff’s TCPA class action was
At Anchin, we have a team of experts dedicated to understanding your complex properly dismissed by the E.D.N.Y. in reliance ruled that the “permissive grant
litigation, forensic and valuation needs.
on the CPLR The Second Circuit noted that of jurisdiction to state courts”
Our professionals excel at helping to simplify and resolve intricate inancial issues. Our team’s depth, irm resources, intellectual “[t]he Supreme Court’s decision in Mims . in the TCPA did not preclude
capital base, analytical expertise and network of international professionals are strategically utilized to create effective uprooted much of our TCPA jurisprudence,”
solutions, expert witnessing, damage calculations, valuations and investigations.
and held that New York State’s procedural “federal courts’ exercise of the
Let us be Your Expert Partner.
rule prohibiting class action claims for
Stephen W. Shulman, CPA/ABV, CVA, CFF Anthony M. Bracco, CPA/CFF, CFE, CVA statutory damages no longer prohibits class general federal question juris-
Partner
Partner
actions for damages being brought under diction they have possessed
[email protected]
[email protected]
the TCPA in New York federal courts. Id. at
661. Open the loodgates.
since 1875.”
anchin.com @anchincpa
1375 Broadway, New York, NY 10018
212.840.3456

Issues Frequently Arising in TCPA Cases
within one of the binding FCC regulations.
Now that the New York courts are open The FCC, however, removed this exception
to TCPA class actions, New York practitio- in a regulation change that became effective
ners litigating TCPA cases need to be aware on Oct. 16, 2013.
of a host of issues that have come up in The focus of the new regulations is on
other jurisdictions. The following outlines what constitutes “consent.” This is prob-
Make informed strategic decisions.
some of the most important ones to watch ably the most litigated issue in TCPA cases.
for—and while not intended to be a compre- While it would seem that whether someone Win larger verdicts.
hensive discussion of each issue (each of consented to receiving a communication Negotiate from strength.
which could ill tomes on their own)—aims ought to be a simple issue, all kinds of
to provides an “issue spotting” checklist for circumstances can give rise to arguments
litigating TCPA class actions.
about whether a particular act is suficient
FCC regulations and guidance: Binding to provide consent. The new FCC regulations
or not? While the TCPA is statutory, the Fed- have tried to clarify, and make stricter, what
eral Communications Commission (FCC) has constitutes “consent” for post-October 2013

a statutory mandate to enact regulations communications. Under the new rules, con-
and to provide guidance on interpreting sent means “prior express written consent”
those regulations and the statute. See 47 that has not been withdrawn, which means
C.F.R. 64.1200. Some have been the subject that inferential consent wrought from the vol-
of the formal federal rulemaking process and untary provision of contact information can
therefore have the force of law, but some are no longer be argued.7 The disclosure must be
merely persuasive authority, although some clear and conspicuous, and consent cannot
courts have held FCC enforcement guide- be a condition for making a purchase. The
lines should not be taken into account.The recipient’s signature is required (although
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