Repurposing old laws to challenge new technologies has become the new normal in the privacy space. Plaintiffs continue to bring a kaleidoscope of privacy claims against companies in the tech age, reviving laws like the California Invasion of Privacy Act of 1994 (“CIPA”), Video Privacy Protection Act (“VPPA”), Telephone Consumer Protection Act (“TCPA”), Pennsylvania Wiretapping and Electronic Surveillance Control Act, and Arizona Telephone, Utility, and Communication Service Records Act.

Capital One Financial Corp. (“Capital One”) and three collection agencies have agreed to pay one of the largest settlement amounts in history — $75.5 million — to end a consolidated class action lawsuit alleging that the companies used an automated dialer to call customers’ cellphones without consent in violation of the twenty-two-year-old Telephone Consumer Protection Act (“TCPA”). Judge Holderman of the Northern District of Illinois preliminarily approved the settlement in late July. 

In its Memorandum Opinion and Order dated November 9, 2012, the US District Court for the Northern District of Alabama in Pinkard v. Wal-Mart Stores, Inc. held that under the Telephone Consumer Protection Act (TCPA), when an individual discloses his or her cellular phone number to a business, that individual is deemed to have expressly consented to receive telephone calls and text messages from that business unless he or she has expressly limited the scope of such consent at the time of the disclosure.  

On September 10, 2008, Timberland Company, an outdoor clothing and shoe merchant, along with co-defendant ad agencies GSI Commerce Inc. (“GSI”) and AirIt2Me Inc. (“AirIt2Me”), settled charges brought under the Telephone Consumer Protection Act (“TCPA”) arising from unsolicited text messages advertising Timberland’s holiday sale.  Pursuant to the settlement, Timberland must employ best practices in future marketing, and must pay $7 million into a fund for distribution to the class.  Prior to any future mobile marketing campaign, GSI agreed to circulate to its marketing personnel a copy of the Mobile Marketing Association’s Consumer Best Practices guidelines, and to establish meaningful training and compliance checks in connection with those guidelines. Additionally, the defendants must pay class counsel a maximum amount of $1,750,000.  The settlement has been agreed to by all parties, but is still subject to final approval by the court.