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Posts Tagged ‘Oregon’

Largest Jury Verdict in TCPA History: Defendant Faces $925 Million in Damages

Posted on: April 18th, 2019

By: Jennifer Lee

On Friday, April 12, 2019, a federal jury in Oregon rendered a verdict in a certified class action that could leave ViSalus, Inc. on the hook for $925 million for making more than 1.85 million unsolicited robocalls in violation of the Telephone Consumer Protection Act (“TPCA”). The case is Wakefield v. ViSalus Inc., Case No. 3:15-cv-01857, in the U.S. District Court for the District of Oregon.

The TCPA prohibits prerecorded calls to cell phones and home phones without prior written consent from the recipient. The TCPA also prohibits the use of an automated dialing system (“ATDS”) to place calls to cell phones without prior written consent. This was a non-issue as ViSalus had already conceded that it used an ATDS for the calls at issue.

During the three-day trial, the named plaintiff and class representative Lori Wakefield testified that she had received four prerecorded calls from ViSalus on her home phone even though she did not consent to such calls. The jury believed her and concluded that the four calls received by Wakefield and the 1.85 million calls received by members of the certified class violated the TCPA.

Statutory damages for TCPA violations are $500 per call, and with more than 1.85 million calls at issue, this verdict could translate into approximately $925 million in damages for ViSalus. But there is more. Since the TCPA allows for treble damages for deliberate violations, if U.S. District Judge Michael Simon finds that ViSalus “willfully or knowingly” violated the statute, ViSalus may be subject to $2.775 billion in damages.

This verdict has wide-reaching implications for companies. It shows that jurors are receptive to TCPA class actions and do not view them as nuisance cases. This is in part because consumers are being bombarded by unwanted telemarketing calls, which are at historical highs and increasing every year. It also means that companies will have a harder time settling these cases and will lead to higher settlement amounts as the plaintiffs’ bar becomes more willing to take TCPA class actions all the way to trial.

If you have any questions regarding the TCPA, including compliance and defending against a TCPA class action, please contact Jennifer Lee at [email protected].

Philadelphia’s “Salary History Ban Law” Gets Banned!

Posted on: May 7th, 2018

By: John McAvoy

More than a half-century after President JFK signed the Equal Pay Act, the gender pay gap is still with us. Women earn 79 cents for every dollar men earn, according to the Census Bureau.  What will it take to bridge that stubborn pay gap? Well, some believe we can and will reduce the impact of previous discrimination by not asking new hires for their salary history. Several cities and states agree with this approach and have passed legislation that prohibits employers from asking questions about an applicant’s salary history. In the cities and states where such laws have been passed, they are not without controversy.

Philadelphia passed a similar law last year. In response, Philadelphia’s Chamber of Commerce, backed by some of Philadelphia’s biggest employers, including Comcast and Children’s Hospital of Philadelphia (CHOP), filed suit against the City of Philadelphia challenging the constitutionality of the salary history ban law, arguing the portion of the law that prevents companies from inquiring about an applicant’s wage history violated an employer’s free speech rights.

On Monday, April 30, 2018, the Eastern District of Pennsylvania made two rulings with respect to Philadelphia’s salary history ban law in the matter of Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, docket no. 2:17-cv-01548-MSG (E.D. Pa. Apr. 30, 2018) (Goldberg, J.).

First, the court found that the law as written violated the First Amendment free speech rights of Philadelphia employers. In sum, the court’s ruling is that employers can ask salary history questions.

Second, the court upheld the ‘reliance provision’ of the salary history ban law, which makes it illegal to rely upon that wage history to set the employee’s compensation.  This means that Philadelphia employers can ask salary history but cannot use it as a basis to set salary.  The purpose of this is to encourage employers to offer potential candidates what the job is worth rather than based on prior salary which could have been set based on discriminatory factors.

There is a prevailing trend nationwide for salary history ban laws. To date, California, Delaware, Massachusetts, Oregon, Puerto Rico, New York’s Albany County, New York City, and San Francisco have enacted salary history ban laws, and at least 14 other states are considering following suit.  Although we anticipate future and continued legal challenges, it seems likely that laws banning salary history inquiries will continue to gain ground, particularly in more progressive states or areas where the pay disparity directly impacts a large segment of eligible voters. As such, prudent employers should prepare themselves to address this new workforce right through smart planning and proper training of employees, including managers, supervisors and HR personnel responsible for ensuring a lawful hiring process.

Want to learn more about what Philadelphia’s salary history ban law means for your business? Let us help you by analyzing your hiring practices. Please call or email the employment experts and John McAvoy (215.789.4919 [email protected]).

DOJ Fails to Challenge 5th Circuit Ruling Striking Fiduciary Rule

Posted on: May 3rd, 2018

By: Theodore C. Peters

On March 15, 2018, the Fifth Circuit Court of Appeal stuck down the “fiduciary rule” proposed by the Department of Labor (DOL), which required brokers to act in the best interests of their clients in retirement accounts.  Subsequently, there was much speculation as to whether the Department of Justice (DOJ), acting on behalf of the DOL, would appeal that decision.  The April 30, 2018 deadline for the DOJ to appeal came and went, but …. nothing.  The Fifth Circuit’s ruling, therefore, is slotted to take effect on May 7, 2018.

In late April, AARP and several state attorneys general (including California, New York and Oregon) joined forces in seeking the court’s permission to intervene as defendants in the case, and also sought an en banc hearing before the entire 17-judge circuit. AARP contends that the court’s decision striking down the DOL rule puts Americans’ retirement security at substantial risk, resulting in an “issue of exceptional importance.”  The plaintiffs in the case, opponents of the DOL rule, formally opposed the motions to intervene on April 30.  Counsel for the plaintiffs charged that the “last-minute motions do not come close to justifying their unprecedented bid to intervene…”

On May 2, the Fifth Circuit denied the intervenors’ motions.  The court’s decision looks to be the final nail in the coffin holding the DOL’s fiduciary rule.  Despite this ruling, however, the DOL still has one more card it could play – it can file a petition by June 13 to have the Supreme Court hear the case. Even if the DOL stands quietly by and does nothing, the Supreme Court could conceivably take the case up on its own.

Ultimately, this legal brouhaha focuses attention on the SEC, which is currently taking public comment on newly proposed standards of conduct for brokers and advisors.

If you have questions or would like more information, please contact Ted Peters at [email protected].