December 14, 2022
Volume XII, Number 348
December 14, 2022
– When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community by: Dana M.Lingenfelser and Kristin D.Mitcham
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…by: Eric J.Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…
by: David A.
Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.Department of State to Update Design on Nonimmigrant and…by: Ashley K.
Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…
by: Lynn L.
Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…
by: Amber K.Dodds and Robert S.
Nichols
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…
by: Paul V.Kelly
– U.S.Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.
Phillips and Christopher M.Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…
by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.
Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…
by: Ty E.
Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…by: Hannah Laming and Adam Klauder
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…
by: Kathryn C.Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…by: Frank M.Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.
Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…
by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.
Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…
by: David A.Lopez-Kurtz and Alex J.Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.Koegel and Stephen C.Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…
by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…by: Adam S.Forman and Nathaniel M.Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.
Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…
by: Joseph J.Mamounas and Claudia D.Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…by: J.
Hunter Robinson and Josh Kleppin
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…by: Simone R.D.Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.
Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.
Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Duty to Preserve Evidence Covers Climate Review by Higher Educational…by: Monica H.Khetarpal and Laura A.Ahrens
– Preliminary Determination of Circumvention Regarding Solar Energy…
by: Gregory Husisian and John E.
Turlais
– Estate Planning for Football Season Ticket Holders by: Katherine M.Szymanski and Rebecca K.Wrock
– Associate Attorney General Vanita Gupta Issues Statement on 2021 FBI…
by: United States Department of Justice (DOJ)
– NLRB General Counsel Proposes Lower Standard for Requiring Employers…by: Adam C.
Abrahms and Steven M.
Swirsky
– American Hospital Association Urges DEA to Issue Special Registration…by: Nathaniel M.Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…by: EPA
– New York State Expands Workplace Protections for Nursing Employees by: Evandro C Gigante and Laura M.
Fant
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…
by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
– Considering Using Biometric Information? Adopt a Biometric Policy Now by: Mike H.Holland and Patrick J.McMahon
– Recent Developments in Telehealth Enforcement by: Sara Helene Shanti and Danielle Vrabie
– ESG INVESTING AND PROXY VOTING: DOL’S NEW FINAL RULE by: Kristina M.
Zanotti and Ruth E.Delaney
– IN A NEW YORK MINUTE, Telemarketing Laws Are Changing! by: Angelika Munger
– Fa-La-La Laws: Employer Liability Issues for Office Holiday Parties by: Katharine O.Beattie and Victoria Stockton Breese
– More Places, Less Spaces: California is Driving Down Development Costs by: Amanda S.Lee
– Bereavement Leave Becomes Mandatory in the Golden State by: Kaleb N.
Berhe
– BETO Postpones December 13, 2022, Webinar on SAF Grand Challenge…by: Lynn L.Bergeson and Carla N.Hutton
– New Year Brings New Laws for Illinois Employers by: Mikela T.
Sutrina and Katherine H.Oblak
– Decision in U.S.v.Holland by: Gabriel L.Imperato
– New Jersey Senate Labor Committee WARNs Effective Date of Amendments…by: Mark Diana and Brandon R.
Sher
– Crypto Punked? Industry Bankruptcies Rattle Markets and Expose Major…by: George P.Angelich and Dan Jasnow
– Global M&A Trends: A Wider Slowdown but Still on Track to Surpass…by: Louis Lehot and Brandee L.Diamond
– Top Five Labor Law Developments for November 2022 by: Jonathan J.
Spitz and Richard F.
Vitarelli
– “Cold-Pressed Juice” Lawsuit Permanently Dismissed by: Food and Drug Law at Keller and Heckman
– December 2022 AFS Privacy Report: Pandora’s Virtual Try-On Tool…by: Eva J.Pulliam and D.Reed Freeman Jr.
– USPTO Releases New Guidelines Shortening the Response Deadline in…by: Luna M.Samman
– ‘No Exit’: SEC Sanctions Investment Adviser for Impeding…
by: Peter D.Hutcheon
– TradeTalk China: December 2 – December 9, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– $10.3 Million in Grants Awarded to Improve the Health of Long Island…by: EPA
– RE-STRUC: Tax Changes as of 2023 by: Thomas van der Vliet and Louisa van Isselmuden
– Episode 23: The Emerging Investigatory Focus on Telehealth: What You…by: Nathaniel M.Lacktman and Maureen M.
Stewart
– The CAC Assessment Collection – Part 2: What Must Be Done Before…by: Amigo L.Xie and Dan Wu
– CFIUS Clearance: GIC Private Limited and STORE Capital Corporation by: International Trade Practice at Squire Patton Boggs
– Here We Go Again: Lesser Prairie-Chicken Re-Listed Under the…
by: Karma B.Brown and Linda Trees
– What’s more common: opt-in, opt-out, or notice cookie banners? by: David A.Zetoony
– An Unstoppable Force Meets an Immovable Object: Microsoft to Fight…by: Jonathan Rubin
– Who Qualifies As An Expert Witness? by: Keith Paul Bishop
December 11, 2022
– Ex-Wall Street Trader Convicted of Fraud in Precious Metals Spoofing…by: United States Department of Justice (DOJ)
– Former Navy Sailor Sentenced for Producing Images of Child Sexual…by: United States Department of Justice (DOJ)
– USCIS Updates Policy to Automatically Extend Green Cards for…by: U.S.Customs and Border Protection Department of Homeland Security
GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory and it is a Master Class in Good Lawyering
I am famous for my work ethic and my legendary ability to get things done.
But I am also famous for critiquing the legal work of other firms.
Most of the time that involves a decent dose of criticism–as my 10 year old says “most of the time ‘the truth’ is an insult”– but from time to time some outstanding legal work comes along and I will stand up and applaud.
Happy to have one of those times now.
In Trim v.Mayvenn, 2022 WL 17584237 (N.D.Cal.12/12/2022) the Defendant earned a GREAT ruling on an affirmative motion to deny certification, ending the prospects for a crushing judgment on a classwide basis.
Let me just say, very few law firms would even ATTEMPT an affirmative motion to deny certification.While I’ve won a few of these over the years it is a fairly rare procedure that only top attorneys (IMO) bring to the field.So I was already impressed by the procedural posture alone here.
But then you dig in and there is even more good stuff in here.
Mayvenn–my kid’s name is “Maven” so obviously I like this case even more now– argued that Trim used his phone for business purposes.And even after Chenette that a question of fact existed respecting Plaintiff’s use of his phone.That–the argument goes–makes him atypical of the class.
Pause.
Notice this is a daring salvo.
If the court found there was no such question of fact the issue may have been determined–substantively–at the certification stage.But Mayvenn was confident in its position–and it paid off!:
Where, as here, the proper classification of a named plaintiff’s cellular phone number creates a triable issue of fact, a number of district courts have found the named plaintiff cannot establish typicality under Rule 23(a) and, consequently, have found certification of an NDNC Registry class is not appropriate.See, e.g., Mattson v.
New Penn Fin., LLC, No.3:18-CV-00990-YY, 2021 WL 1406875, at *5 (D.Or.Mar.8, 2021), report and recommendation adopted in part, 2021 WL 2888394 (D.
Or.July 9, 2021) (granting defendant’s motion to deny certification of NDNC Registry class; finding genuine issue of material fact as to “whether the subject number is a residential or business phone number … may well result in less attention to the issue which would be controlling for the rest of the class” and “could become a major focus of the litigation” (internal quotations, citations, and alteration omitted)); Cunningham v.Vivint, Inc., No.219CV00568DBBCMR, 2022 WL 2291669, at *8 (D.Utah June 24, 2022) (granting motion to deny certification of NDNC Registry class; finding named plaintiff’s “claims would not be typical of the class if his number is a business number rather than a residential number”).
The Court finds the reasoning of such authorities persuasive, and, having found a triable issue of fact as to whether Trim qualifies as a “residential subscriber” for purposes of her NDNC Registry claim, (see April 5 Order at 8:23-24), concludes Trim has not met her burden under Rule 23(a)(3).
Great work!
But it gets even better.
Through some nifty sleuthing, Mayvenn determined the Plaintiff had used his number for business purposes that Trim did not disclose in discovery.And that is a big no no:
Here, Mayvenn contends, Trim has “serious credibility problems” on issues “go[ing] to the heart of the litigation” (see Mot.at 20:12; 20:26), and, in support thereof, highlights multiple contradictions in Trim’s testimony pertaining to whether and to what extent she uses her personal cell phone number for personal and/or business purposes.
In that regard, although Trim testified at her deposition that she uses her personal cellphone number for sales calls to prospective customers (see Dep.Of Lucine Trim at 77:4-19), she thereafter submitted, in opposing Mayvenn’s Motion for Summary Judgment, an affidavit averring she “make[s] those sales calls” using a telephone number her “work provides” (see Aff.of Lucine Trim ¶¶ 4-6).Further, during an appearance as a guest on a videotaped program in which she was identified as an employee of Impact Merchant Solutions, Trim provided business tips and, while her personal cellular phone number flashed across the screen, invited viewers to “text or call” her.(See Burshteyn MSJ Decl.Ex.F.) Later, however, when, in an interrogatory, she was asked to “[s]tate … all instances where [she] listed [her] cellphone number in directories, postings, social media, or any public forum or media related to [her] work[,]” Trim stated “there are no [such] instances to identify” (see Pl.Resp.
to Mayvenn’s Third Set of Interrog.at 2).
Wow!
Most lawyers–I am sad to report–likely would not have determined the undisclosed uses of the phone that Mayvenn dug up, and fewer still would have constructed the credibility challenge to destroy typicality and adequacy that animated the result.So, again, excellent work.
And beyond the complexity of the motion–this result shows real engineering and creativity.It was Troutmanesque, dare I say.
And that’s pretty much the highest compliment I can bestow.
Nice work guys!
Happy Wednesday TCPAWorld..