(Originally featured by the ABA International Section’s Ethics Committee at: ABA – International Section: The Year in Review; International Legal Developments Year in Review: 2020)
This article reviews some of the most significant international legal developments made in the area of ethics in 2020.
2020, the year of COVID, witnessed more than the warp-speed development of several vaccines against the Coronavirus. Indeed, as the world tackled a pandemic, the application of justice and law has carried on. Four areas of interest that merit highlighting in 2020 are: (1) service of process abroad, and how the pandemic has impacted alternative service under Federal Rule of Civil Procedure Rule 4(f); (2) the nomination of Supreme Court justices in the United States; (3) the neutrality or non- neutrality of wing arbitrators; and (4) the tackling of corruption in the execution of contracts that are later arbitrated.
By Ian Ross and Jorge Perez Santiago
(Originally featured by the American Health Law Association at: https://www.americanhealthlaw.org/content-library/journal-health-law/article/c6fda9a6-4d67-4633-b65a-6e85a044661f/What-Health-Care-Providers-Should-Know-About-the-T )
Thousands of companies are sued every year under the Telephone Consumer Protection Act of 1991 (the TCPA). The attorneys who bring these lawsuits target every industry, but in recent years have focused much of their attention on health care companies and medical providers who communicate with their patients via text message and prerecorded messages. Many courts have held that certain provisions in the TCPA and its implementing regulations are subject to interpretation, and plaintiffs’ attorneys have taken advantage of this uncertainty by filing lawsuits first and worrying about the implications later. Although appellate courts—and even the United States Supreme Court—have stepped in to clarify the scope of the TCPA, it is important for health care professionals to understand the dangers posed by these lawsuits and to make sure that their compliance program and communications with their patients follow the TCPA and applicable regulations. This article will outline the basic structure of the TCPA and explain (1) what it prohibits, (2) the exemptions to the TCPA that have been enacted to protect health care professionals who need to communicate with their patients, and (3) how those exemptions have been interpreted by courts and why those interpretations continue to evolve.
By Ian Ross and Jorge Perez Santiago
(Originally featured by Law360 at: https://www.law360.com/articles/1358537 )
Over the last two years, plaintiffs have increasingly looked to state courts when filing their consumer protection and privacy putative class actions.
Claims under the Telephone Consumer Protection Act, for example, were once filed almost exclusively in federal court. Now hundreds are brought in state court where plaintiffs can try to avoid the U.S. Court of Appeals for the Eleventh Circuit precedent that has narrowed the viability of those cases.
More recently, plaintiffs have tested their luck filing class claims based on alleged deceptive emails or data breaches under Florida’s Electronic Mail Communications Act and Florida’s Unfair and Deceptive Trade Practices Act.
By Adam Foslid, Ian Ross, and Erica Perdomo
(Originally featured by Law360 at: https://www.law360.com/articles/1199426/)
A recent opinion from the U.S. Court of Appeals for the Eleventh Circuit could transform statutory consumer protection class actions in the court’s jurisdiction. In Salcedo v. Hanna, the Eleventh Circuit considered an interlocutory appeal of a putative class action brought under the Telephone Consumer Protection Act and held that receipt of a single unsolicited text message sent in violation of the TCPA does not, in and of itself, create the requisite Article III standing for a plaintiff to bring a case in federal court.
In so holding, the Eleventh Circuit made clear that a court’s Article III standing inquiry in the TCPA context must focus “on the qualitative nature of the injury” to the individual plaintiff. For this reason, some practitioners have hailed Salcedo as the death knell of TCPA class action litigation in the Eleventh Circuit, but that remains an open question because the Eleventh Circuit has not yet decided the larger issue of whether unnamed putative class members are required to establish Article III standing.
By Ian Ross and Adam Foslid
(Originally featured by Law360 at https://www.law360.com/appellate/articles/1151133/tcpa-questions-loom-as-11th-circ-considers-3-cases)
Federal district courts in Florida in recent years have become well-acquainted with the Telephone Consumer Protection Act, 47 U.S.C. § 227. In 2018, for the fifth consecutive year, more than 3,000 TCPA lawsuits were filed in federal court, and Florida remained a hotbed for TCPA litigation.
A number of federal judges in Florida now use specific standing orders for TCPA class actions, and increasingly in the Southern District of Florida, these cases are fast-tracked and set for trial within eight to ten months of filing. But courts deciding these cases are still seeking clarity from the Federal Communications Commission and appellate courts on how the TCPA and, specifically, its definition of the term “automatic telephone dialing system,” should be interpreted. This much-needed clarity may be on the way.