Commercial Litigation Update

The federal Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, was enacted in 1991 to protect consumers from unsolicited telemarketing calls, faxes, and now text messages.  For businesses that engage in telemarketing, the TCPA poses significant legal risk for noncompliance.  The TCPA's strict regulations and severe financial penalties mean that even inadvertent violations can lead to substantial fines and costly class-action lawsuits.

Adding more compliance risk to telemarketers, Texas enacted its own TCPA (known as the Texas “mini-TCPA”) in 2009 to further protect the privacy of Texas residents by imposing more requirements on businesses engaged in telemarketing activities in Texas and by implementing more robust enforcement mechanisms.

On Wednesday, April 19, the Court decided three cases that are interesting and instructive in following how the Justices, both nominal liberals and conservatives, attempt to apply textual methodology in assessing jurisdictional prerequisites, though not always reaching unanimous results.

With his retirement to begin on June 30 at noon, Justice Breyer leads a 5-4 split in Torres v. Texas Department of Public Safety, with the Chief Justice and Justice Kavanaugh, along with Justices Sotomayor and Kagan, joining him in holding that, by virtue of the states having ratified the Constitution, they agreed that their sovereignty would yield to the national power to raise and support the Armed Forces. Accordingly, Congress may exercise this national power to authorize private damages suits against nonconsenting states. Congress did just that when it passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers, and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U. S. C. § §4301 et seq.

Mark Twain once said: “Trial by jury is the palladium of our liberties. I do not know what a palladium is, but I am sure it is a good thing!” If Mr. Twain were alive today, he wouldn’t be quite so sure that jury trials conducted during the COVID-19 pandemic are really such a good thing.

Recent news reports suggest that a vaccine may not be available until next spring at the earliest, and it may take months before that vaccine can be widely distributed. But the demands of justice do not rest, and courts—already overburdened with growing dockets before the pandemic—are struggling to ...