Chicago partner Justin O. Kay was quoted in the Law360 article, “FCC's Loss on Fax Rule Could Curb Explosion of TCPA Suits.”
In a notable 2-1 decision, the D.C. Circuit found that a 2014 Federal Communications Commission (FCC) rule requiring opt-out notices be placed on solicited faxes was unlawful. The FCC rule had been utilized by plaintiffs to file suit under the TCPA, but the D.C. Circuit’s ruling eliminates this particular vehicle.
Justin discussed how the plaintiffs’ bar had been using the regulation in class actions, noting that, “The plaintiffs’ bar has pretty much always typically tried to define a class to include solicited and unsolicited faxes, so from that perspective, it's much easier to ask to certify a class where the only question is whether the required opt-out language appeared on the paper.”
As a result of the ruling, however, Justin observed that, “... it's likely that the plaintiffs bar will have a much harder time showing that this is not an individualized issue and that the class should be certified.”
Justin also discussed the potential impact of the court’s ruling, and how the opinion may be cited in TCPA cases going forward.