Irrevocable Consent Comes to the Eleventh Circuit: Two District Courts Apply Reyes to Boot TCPA CasesA critical question in Telephone Consumer Protection Act (TCPA) cases is whether the plaintiff gave consent to receive communications from the defendant, and whether that consent had been revoked by the time of the communication. Given the problems with the TCPA in general, you would probably not be surprised to learn that the TCPA does not specify how a person can revoke consent. The TCPA lawsuit industry wants a world where a person can give formal consent to receive communications and then revoke it on a whim. This “anything goes” revocation standard can expose companies to sudden and sizable liability.

Thankfully, the Second Circuit held in Reyes v. Lincoln Automotive Financial Services that a person who gives consent as part of a bargained-for exchange cannot unilaterally revoke it. Where a consumer consented as part of the consideration for the contract, the company can continue to rely on that consent.

Irrevocable consent under Reyes is anathema to TCPA cases because most companies are––or soon will be––including appropriate consent language in their agreements with their customers.

The big question facing companies now is whether Reyes will expand beyond the Second Circuit. While some early trends were bad, we are happy to report that two district courts in the Eleventh Circuit have relied on Reyes to grant summary judgment in TCPA cases.

The first of these two cases is Few v. Receivable Performance Management, in which the Northern District of Alabama granted summary judgment in a single-plaintiff case. In Ms. Few contract with her satellite TV provider, she agreed that the provider and any debt collector acting on the provider’s behalf could contact Ms. Few at a particular phone number. A debt collector then called Ms. Few to recover an alleged debt, and Ms. Few said that she did not wish to receive calls. The debt collector nevertheless called or texted more than 180 times.

No dice, ruled the district court. In the absence of controlling Eleventh Circuit precedent, the court found Reyes persuasive and applied the bargained-for exchange rule: “because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent.”

The Middle District of Florida––a notoriously dangerous TCPA jurisdiction for defendants––reached a similar result in Medley v. Dish Network, LLC. The plaintiff, Ms. Medley, complained that her lawyer had effectively revoked her consent to be contacted by Dish, which responded with a Reyes argument. The court agreed with Dish, and cited the Northern District of Alabama’s Few case with approval. It also helpfully distinguished several cases that had permitted unilateral consent revocation.

These cases are good news for companies facing TCPA liability in the Eleventh Circuit. While the appeals court has recognized federal common law governs issues of giving and revoking consent, it has not yet addressed Reyes and the effect of a bargained-for exchange. It is hoped that Few and Medley will lead a trend toward further adoption of Reyes.

The takeaway in litigation is to press the Reyes issue. Some courts have reached unfavorable conclusions when addressing consent and revocation in the abstract, but courts have been more receptive to defendants that can point to the particular inequity of a plaintiff getting the benefits of consent in a contract and then repudiating the contract to obtain a TCPA windfall.

Specific to the class-action context, the adoption of Reyes affords multiple chances to defeat class claims. Early summary judgment practice on consent and revocation can put putative class representatives on the defensive, and potentially complicate plaintiff’s efforts to show adequacy, commonality and typicality. Putative class representatives may also have to resort to individualized facts to show why they should be allowed to back out of the deal that included their consent, potentially putting plaintiffs on the horns of a dilemma: Save the class and risk losing the whole case, or save the case and risk losing the class-action payday.

We’ll close with a practical point: Companies should be studying their consumer-facing agreements to determine whether a consumer’s consent to receive telephone communications is––or can be reconfigured to be––part of a bargained-for exchange. Companies can help manage their TCPA liability by crafting their customer agreements appropriately as to arbitration (including a non-severable class action waiver), indemnity, and the bargained-for nature of consent. These preventive measures, deployed effectively, can both dissuade the prowling packs of TCPA lawyers from bringing a claim in the first place, and also strengthen the company’s defense if litigation is filed.

Be Careful What You Ask For: Eleventh Circuit Holds That Arbitrator – Not Court – Decides Whether Arbitration Agreement Designating AAA Rules Allows for Class ArbitrationThe Eleventh Circuit has held that, absent express language to the contrary in the arbitration agreement itself, whether class arbitration is permitted under an arbitration agreement selecting American Arbitration Association (AAA) rules is an issue for the arbitrator to decide (Spirit Airlines, Inc. v. Maizes, No. 17-14415 (11th Cir. Aug. 15, 2018)). This decision highlights yet another class action-related circuit split calling for Supreme Court resolution, and also illustrates a potential pitfall in drafting effective arbitration agreements.

Case Background and Ruling

The case arose out of Spirit Airlines’ “$9 Fare Club,” a program offering cheaper fares and bag fees to members. Steven Maizes and three other individuals filed a claim in arbitration against Spirit claiming that the company violated the Fare Club agreement and asserting those claims on behalf of a putative class. The airline responded with a declaratory judgment action against the class representatives in federal court, seeking a declaration that the agreement’s arbitration clause did not authorize class claims. Spirit also sought to enjoin prosecution of the class claims in arbitration. Following a hearing, the district court denied Spirit’s request for an injunction, and dismissed the case. The court reasoned that the arbitration agreement, which required arbitration “in accordance with the rules of the American Arbitration Association then in effect,” of necessity incorporated Rule 3 of the AAA’s Supplementary Rules for Class Actions. Because the AAA rules require the arbitrator to determine whether the arbitration agreement permits class arbitration, the trial court dismissed Spirit’s case for lack of jurisdiction. The court also declined to allow Spirit’s vice president to testify that the company never had any intent to arbitrate more than one dispute at a time, as there was no ambiguity in the agreement requiring parol evidence to clarify.

On appeal, the Eleventh Circuit affirmed. The court first cited the Supreme Court’s decision in First Options of Chicago, Inc. v. Kaplan for the proposition that lower courts should not presume that parties to an arbitration agreement have agreed to have an arbitrator decide questions of arbitrability “unless there is clear and unmistakable evidence that they did so.” The court went on to hold that the parties’ selection of AAA rules in their agreement amounted to such clear and unmistakable evidence. In so doing, the court relied on its 2005 decision in Terminix Int’l Co. v. Palmer Ranch Ltd. Partnership, which involved individual rather than class arbitration. In Terminix, the court held that the parties’ adoption in their agreement of the AAA Commercial Arbitration Rules (including Rule 8(a), which grants the arbitrator the authority to determine the existence, scope or validity of the arbitration agreement) was clear and unmistakable evidence that the parties intended for the arbitrator to decide the agreement’s enforceability. The Eleventh Circuit in Spirit Airlines took the Terminix reasoning and holding as outcome-determinative, holding that invocation of the AAA rules put the arbitrability of class claims squarely in the hands of the arbitrator.

The court acknowledged that appellate decisions from the Third, Fourth, Sixth and Eighth Circuits have, by contrast, held that adoption of the AAA rules is not clear and unmistakable evidence of the parties’ intent to allow the arbitrator to decide the class arbitrability question. Nevertheless, the Eleventh Circuit read those decisions as requiring a higher showing for class arbitrability than for other issues of arbitrability, for which it could find “no basis” in Supreme Court precedent.

Takeaways

  • While the Eleventh Circuit may have felt its hands were tied by the decision in Terminix (which “weigh[ed] heavily” in the court’s consideration), its conclusion that there is no basis in the Supreme Court’s cases for requiring a higher burden in the class arbitrability context can fairly be questioned. In both its Concepcion and Stolt-Nielsen decisions, the Supreme Court described the dramatic differences between two-party and class arbitration, including vastly higher monetary stakes, due process concerns implicated by class proceedings, and stark disparities in speed, efficiency, formality and cost.
  • Layered onto these differences is the reality that appellate review is practically nonexistent in arbitration (including on questions of class arbitrability, if such are left to the arbitrator). If an arbitrator errs in the resolution of a class case (for example, in deciding certification, in approving or rejecting a class settlement, in failing to require adequate representation or class notice, or in dealing with class member opt-out rights), such an error is almost certain to go uncorrected. That may well mean that while the defendant is stuck with the arbitrator’s decision, the class may not be bound by it as a matter of due process, and therefore may be free to relitigate a result they don’t like, either individually or as a class. Given those risks, it is fair to require an express delegation to the arbitrator of the class arbitrability question, rather than simply relying on an inference based on the rules the parties selected.
  • Spirit Airlines creates a circuit split, one that the Supreme Court – given its recent interest in the interplay of class proceedings and the Federal Arbitration Act – seems likely to address sooner rather than later. (The split was deepened the following week, when the Tenth Circuit held that the parties’ adoption of AAA rules constituted clear and unambiguous intent to defer the question of collective action arbitrability to the arbitrator.)
  • Whether or not the Supreme Court takes up the issue, companies would do well to review their arbitration agreements. Many companies prudently craft their arbitration agreements to contain a class action waiver that is not severable and that expressly reserves the issue of class arbitrability to the courts. Jurisdiction to decide the issue should be expressly withheld from the arbitrator. (An award exceeding the arbitrator’s jurisdiction is one of the very few permissible grounds of appeal from an arbitrator’s decision as specified in the Federal Arbitration Act, 9 U.S.C. §16). Expressly disallowing use of the AAA Supplementary Rules for Class Actions might be another prudent drafting measure, as would adopting arbitration rules only to the extent that they do not conflict with the express terms of the arbitration agreement. Whatever the benefits of bilateral arbitration in any given circumstance, facing a class action before an arbitrator — with no necessary application of the rules of civil procedure or evidence, and no possibility of appellate review – is a place few defendants would want to be.
  • No matter what aspect of arbitration is at issue, relying on third-party arbitration rules without specifying rules in effect as of a certain date is risky because those rules are subject to change without notice. Companies should be explicit in stating the critical parts of their arbitration agreements and should not count on arbitration rules to supply them.

We continue to watch arbitration carefully. While arbitration has been a very successful tool in helping companies manage litigation risk, it is not a silver bullet. Companies need to be mindful of what questions are best decided by arbitrators, and what questions belong in court.

Defeating Class Certification in Consumer Data Breach Class Actions Begins with Understanding How They OccurConsumer data breach class actions, for all of their popularity on dockets and especially in headlines, can make difficult cases for plaintiffs. Issues like standing and damages often keep these cases from getting off the ground (as we have discussed previously), but we see far larger predominance problems looming for plaintiffs—chiefly in the area of causation. Companies in 2018 know how difficult a data breach can be to prevent, detect, and fix. These same difficulties can also flummox plaintiffs trying to sue companies in the wake of a data breach.

Consumer data breach cases, particularly those resulting from large breaches, involve a complex chain of independent actors. Take a payment card attack such as the one that occurred at Target in 2013. Through a virus sent by email to a vendor that had access to Target’s store-level computer network, hackers installed a program on virtually all of Target’s point-of-sale consoles that customers use to swipe their payment cards. That program copied information from the card—things such as the card number, expiration date, and CCV codes––and stored it on Target’s network. Then, the program sent the copied data through a chain of servers in different jurisdictions to the hackers. The hackers (or others who had purchased information from the hackers) were then able to sell the payment card data on the so-called “dark web.” A prospective purchaser would buy card information and have it printed on a counterfeit card, which could then be used to make purchases. Thieves obtained stolen information on 40 million payment cards using this method without ever necessarily setting foot in a Target store.

But hackers can use several other methods as well. A local thief can install a “skimmer” device that copies data from payment cards. These devices are often installed on gas pumps or ATMs. A single rogue employee could copy information from a business’ customers’ cards, or the employee could steal information from the business records (paper or electronic). Hackers can also attack other parts of the payment card infrastructure, such as payment card processors or issuing banks. Online stores can be hacked directly, and hackers can also obtain payment card data by accessing a consumer’s computer and stealing information stored on it. The personal data stolen from Equifax would allow criminals to open fraudulent payment card accounts. If these weren’t enough, a deft pickpocket can still steal a physical card.

While these various kinds of attacks can be prevented or interrupted, most of these breaches and thefts remain secret until fraudulent cards appear on the market or a pattern of fraudulent charges begins. Once fraudulent cards or charges appear, banks, processors, or the card associations (such as Visa and MasterCard) can look for common characteristics in the fraudulent charges: Did the customers all shop at a particular merchant at a particular time? Was the customers’ data routed through a common processor that could have been hacked? Are the fraudulent cards being used in one geographical area, or are they dispersed throughout the country? Are the fraudulent cards being used exclusively online? The answers to these questions allow industry and government investigators to narrow the list of possible causes of the breach.

Further complicating matters, stolen information or cards can be sold and resold on the black market before appearing in commerce. While thieves usually try to move quickly before the cards are cancelled, some thieves are sophisticated enough to balance speed with avoiding detection—they know a spike in fraud might trigger an investigation.

At first blush, the investigation of a data breach sounds much like how the CDC might go about tracking a salmonella outbreak to a particular food item. This analogy is attractive, but ultimately unsatisfactory for a few reasons:

  • For one thing, there are too many overlapping breaches to draw neat causal lines. Because criminals prefer to remain anonymous, and companies suffering hacks are not anxious to publicize them, accurate records of data breaches are hard to obtain. But one estimate we reviewed suggested that there were nearly 180 million records at risk in known data breaches in 2017 alone. In other words, we know thieves stole more than one record for every two people in the United States in a single year. And that number does not include the three billion records stolen from Yahoo! across several years, or the nearly limitless number of records made vulnerable through the Heartbleed bug. This constant flow of breaches and thefts results in a constant flow of fraud. Large breaches cause fraud to spike, but accurately tying a particular instance of fraud to a particular breach is very difficult.
  • While a patient suffering a medical condition will seek help, a data breach victim might not even know he or she has been affected. A payment card breach can lie dormant for a long time. Not only do thieves strategically time their use of stolen payment card information, they also use other personal information (such as Social Security numbers or access to an email account) to perpetrate fraud months or years later.
  • Unlike disease-causing germs, criminal hackers actively avoid detection. Intrusions, data exports, and data transfers are all done with maximum secrecy. Moreover, a computerized attack can come from anywhere in the word through a lengthy chain of anonymized servers in different jurisdictions.

The complexity of tying a particular breach to a particular instance of fraud has led leading security journalist Brian Krebs to write, “All that said, it’s really not worth it to spend time worrying about where your card number may have been breached, since it’s almost always impossible to say for sure and because it’s common for the same card to be breached at multiple establishments during the same time period.” Finding the actual perpetrators of a breach will often be impossible, and in the present technological and legal environment, plaintiffs almost universally resort to circumstantial proof.

A company that is a victim of a data breach should be aware of these complex problems in defending against class claims. Consider a traditional negligence claim, which requires the plaintiff to prove that a breach of duty proximately caused the plaintiff’s injury. Plaintiffs often assert that any fraud happening after a breach happened because of the breach, but that conclusion is not only a logical fallacy, it should be legally insufficient. And chances are that a particular card has been the subject of more than one breach.

The Eleventh Circuit hinted at how important information about other causes can be in a data breach case. In Resnik v. AvMed, Inc., the court reversed dismissal of a complaint alleging that the plaintiffs suffered identity theft after a laptop with their personal information was stolen. The plaintiffs in that case had extensively alleged that they took a wide range of preventative measures to keep their identities safe. These allegations were taken as true for purposes of the appeal and “[h]ad Plaintiffs alleged fewer facts, we doubt whether the Complaint could have survived a motion to dismiss.” The Middle District of Alabama expanded on the Eleventh Circuit’s discussion in Smith v. Triad of Alabama, LLC, where (even though it certified a class), the court recognized that proving causation “may require a review of any prior thefts of each class member’s identity” and would involve member-by-member mini-trials.

As more data breach cases are filed—and especially as more of them get to the summary judgment and trial phases of litigation—plaintiffs’ theories will mature. In the meantime, however, companies should seek to understand the complex chain of events that occur before, during, and after a data breach. Not only will this information help companies secure their own systems against a breach, but it will also guide them in developing a strategy to oppose class certification. The plaintiff’s discovery efforts will be driven towards showing that the breach had a simple cause and had relatively uniform effects on a homogenous population of class members. To counter this narrative, companies must identify and discover variations within the plaintiff’s proposed class.  Instead of automatically adopting a passive, defensive posture, companies should consider being more aggressive in developing a counter-narrative. In appropriate circumstances, this could include investigation into preventive measures the named plaintiffs did or didn’t take with regard to their information or data, other data breaches occurring at roughly the same time as the subject breach, and whether plaintiffs’ or class members’ data might have been exposed to multiple unrelated breaches.

Such strategies may even prove helpful in those jurisdictions (such as the Seventh and Ninth Circuits) that have found standing in data breach cases where plaintiffs’ stolen information has not actually been used, but is alleged to create increased risk of identity theft alone (see our post on that subject). While pointing out factual complexities of the breach and other contemporaneous but unrelated breaches might not suffice to defeat Article III standing, such proof could well be beneficial in showing that common factual issues do not predominate and that individualized proof will be necessary. The proven prospect of thousands of mini-trials on causation and damage might give even a class-friendly judge pause.

Courts are still figuring out how consumer data breach cases fit into traditional tort categories. The theories asserted and damage items claimed in data breach cases are always changing, and that trend should continue. An effective defense strategy in this environment requires staying on top of the evolving ways in which criminals are stealing, selling, and using data.