Visualis TCPA litigation heads to the Court of Appeal

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I read a lot of memoirs.

Good briefs. Bad briefs. Long panties. Short panties. Pleadings before the courts of first instance, the courts of appeal, the Supreme Court. Memoirs of my associates write. The memoirs of my partners write. Write the briefs of the opposing lawyer.

Lots of memories.

So trust me when I say that-Visalus panties– is a very good thesis.

In fact – and those of you reading this blog know that I hardly ever make predictions like this – I think Visalus is going to gain its appeal.

You almost have to.

In the background, Visalus is the loser in the biggest TCPA trial ever before a jury. In reality-as Jay Edelson will hasten to tell you– they lost the biggest privacy jury verdict in history.

$ 925,000,000.00.

The origin story of the Visalus judgment is the stuff of the TCPA.World tradition. I’m not going to tell it all here, but at a high level:

But something almost as miraculous as the FCC disclaimer happened after the judgment – and this time Visalus can not give it up.

The Supreme Court ruled in Ramirez vs. Transunion that without a name Class members in certified cases cannot recover damages at trial unless they have suffered injury under Article III.

Remember how I explained it was a great deal?

Well, the brand new and brilliant Appeals Lawyers at Visalus agree. And they lead with this very simple argument:

Visalus was sued for not having good level written consent for many of the calls he has made. But he still had consent (for at least part of the class.) And the people who consented to the appeals – even if the consent did not meet the technical requirements of the regulations – could not have been harmed by the appeals that were made. ‘they wanted.

Quite strong right?

See the Visalus case exploited a legal fiction that failure to obtain a high level of consent causes harm, even when a consumer has provided a lower level of consent. And given that it was not even clear what level of consent Visalus should have at the time it obtained consent, it would be quite unfair to hold Visalus accountable for calls that were granted (but again, not granted. quite To).

This was precisely what drove the FCC’s waiver order – but, again, the court concluded that this issue had been (ironically) dropped.

But the status of Article III is jurisdictional. It cannot be deleted, modified or created. Either it exists or it does not. His goal. Black and white.

That’s why I like the concept so much.

And Ramírez says that the competence must exist for each member of the group to recover damages – yet not all group members will have been harmed in all TCPA case.

Indeed, in the Visalus case, it is difficult to imagine how all member of the consenting group was injured. Maybe one or two were in a way “okay, thought I wanted calls but changed my mind and didn’t tell you, but you should have known at all. way”. And one or two were probably injured in a “well I signed the form but I didn’t read it and now I’m annoyed that you are calling me”.

But to say that all consenting band member was injured evenly is… well… that’s just not true.

So Visalus must to win. Unless…

Well, in the law the truth doesn’t always prevail.

There are legal fictions to pay attention to. And these fictions generally retain some higher principle. In theory at least.

So maybe the Ninth Circuit is fabricating another legal fiction to hold the judgment together. Something like “The regulations requiring specific written consent wouldn’t mean anything if callers could just ignore them and claim that consenting consumers were not harmed, so … we’re just going to ignore Ramírez for political reasons.

It shouldn’t happen. But it is not impossible. And the Ninth Circuit likes to do stuff like that.

Barring something remarkable, however, Visalus is going to win the appeal. The judgment will be overturned to some extent – and perhaps entirely. And that will make a truly amazing blog post.

I can’t wait to write it.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 300

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