News & Events

Chicago, October 19, 2017

SMB Attorneys Win Partial Summary Judgment in TCPA Class Action Lawsuit

Swanson, Martin & Bell, LLP attorneys Michael A. McCaskey, Darren B. Watts and Steven L. Vanderporten recently won partial summary judgment in a class action lawsuit filed under the Telephone Consumer Protection Act (TCPA).

Previously in October 2014, McCaskey and other SMB attorneys successfully petitioned the Federal Communications Commission (FCC) and obtained a retroactive FCC waiver from a section of the TCPA requiring “opt-out notices” on fax advertisements. The ruling led to the dismissal of the related lawsuit and a sweeping change to the law.

In the present case, SMB attorneys moved the Court to enforce the retroactive FCC waiver to dispose of the plaintiff’s claims based on allegedly improper opt-out notices on certain faxes, and to limit the size of the putative class. Over the plaintiff’s objections, including that the retroactive FCC waiver did not apply to private litigation under the TCPA, and that its application was unconstitutional, the District Court granted SMB's motion for partial summary judgment, precluding the plaintiff and the putative class from seeking relief from SMB's client based on alleged opt-out notice violations.

The decision is one of the only in the country in which a court enforced the retroactive FCC waiver as a matter of law to dispose of a plaintiff’s TCPA claims based on improper opt-out notices.

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