Consumer Class Defense Counsel | Insights | �鶹ֱ�� & Lardner LLP

Tocopherol Class Actions: A Defense Playbook for Food and Beverage Companies

eaheinrich@foley.com — Fri, 28 Aug 2026 20:58:38 +0000

If your company has received a demand letter or complaint alleging that your “All Natural” or “No Artificial Preservatives” labeling is deceptive because your product contains tocopherols, you are not alone. A growing wave of consumer class actions is targeting food, beverage, and pet food companies on this theory — and it shows no signs of slowing down. This article provides an overview of the current litigation landscape, explains that, while these cases can be susceptible to early pleadings challenges, they often survive motions to dismiss, and identifies practical defense strategies that can meaningfully reduce exposure.

What Are Tocopherols — and Why Have Plaintiffs’ Attorneys Set Their Sights on Them?

Tocopherols are chemical compounds that comprise forms of vitamin E and occur naturally in certain oils and plants. The Food and Drug Administration (FDA) classifies tocopherols as Generally Recognized as Safe (GRAS), and they are permitted in organic food products. In food manufacturing, tocopherols serve two primary purposes: as a nutritional additive (vitamin E) or as an antioxidant that extends shelf life. Because tocopherols can be either naturally derived or synthetically produced, their classification as “natural” or “artificial” often depends on their source and intended function in a given product.

Plaintiffs’ attorneys have seized on this ambiguity. Across federal and state courts nationwide, putative class actions have challenged “No Artificial Preservatives” and “All Natural” labels on products containing tocopherols. The typical complaint alleges that a company’s front-of-package claim is false or misleading because tocopherols appear in the ingredient list — and plaintiffs argue that tocopherols are, or can be, artificial preservatives.

Unfortunately for defendants, most tocopherol-related cases have survived motions to dismiss. Several courts have found that whether tocopherols function as artificial preservatives in a specific product is a factual question that cannot be resolved at the pleading stage. See, e.g., Boone v. PepsiCo, 653 F.Supp.3d 635 (E.D. Mo. 2023) Gitson v. Trader Joe’s, 2013 WL 5513711(N.D. Cal. 2013), Garcia v. Kashi Co., 43 F.Supp.3d 1359 (S.D. Fla. 2014). However, most tocopherol lawsuits settle early on, before dispositive motions are briefed, for two key reasons:

First, the economics of class action defense are punishing. If a case survives the motion to dismiss and enters discovery, defendants face the prospect of expensive document production, depositions, expert retention, and class certification briefing. The cost of defense alone — regardless of the merits — creates significant settlement pressure. Plaintiffs’ attorneys know this, and their litigation model depends on it.

Second, the core factual disputes are not suited to early resolution. Whether a particular tocopherol is naturally derived or synthetic, whether it functions as a preservative or a nutrient in a given formulation, and whether a reasonable consumer would be deceived by the label are all fact-intensive inquiries. Courts are reluctant to resolve these questions on motions to dismiss, which further incentivizes defendants to settle before incurring the cost of fully briefing such motions.

Despite these headwinds, companies are not without options. Effective defense counsel can leverage several strategies to drive down settlement value — or, in the right case, defeat these claims outright.

For example, in many tocopherol cases, the product at issue discloses tocopherols — and even their function — directly on the ingredient panel. Phrases like “tocopherols (to preserve freshness)” or “tocopherols (preservative)” often appear on the back label. This disclosure can be used as a powerful defense tool. If the product itself informs consumers that it contains tocopherols and describes their preservative function, it becomes significantly harder for a plaintiff to show that a reasonable consumer was deceived by the front-of-package “No Artificial Preservatives” claim.

Ninth Circuit Precedent Supporting Full-Label Analysis

Recent Ninth Circuit precedent has bolstered this defense. In McGinnity v. Procter & Gamble Co., 69 F.4th 1093 (2023) and Bryan v. Del Monte, 2024 WL 4866952, the Court held that it is appropriate to consider back-label disclosures when evaluating whether a front-of-package claim is allegedly misleading — particularly where the front label is potentially ambiguous. This is critical in tocopherol cases because the front-of-package “No Artificial Preservatives” claim is, at most, ambiguous when the product contains tocopherols of uncertain source. When the back label then expressly identifies tocopherols and their function, the full label context may defeat any inference of consumer deception.

Notably, In re KIND LLC “Healthy & All Natural” Litigation, 627 F.Supp.3d 269 (S.D.N.Y. 2022) remains the only tocopherol-related case the authors have identified that reached summary judgment — and the defendant won. The court found that plaintiffs failed to provide evidence of what a reasonable consumer would understand from the labeling or proof that the products contained “artificial or synthetic” ingredients under any reasonable consumer definition. While most tocopherol cases settle before summary judgment, KIND demonstrates that these claims are defensible on the merits when the defendant builds the right evidentiary record and is willing to fight.

Proactive Risk Mitigation: What Companies Should Do Now

Given the recent surge in tocopherol litigation, companies should take proactive steps to mitigate their exposure. Organizations that use tocopherols or similar preservative ingredients should carefully evaluate labeling statements regarding “naturalness” or the absence of “artificial preservatives” and assess whether a plaintiff could plausibly argue that such statements are deceptive. Even when tocopherols are derived from natural sources like soybeans or sunflower oil, proving that fact at the motion to dismiss stage — where the court must accept the complaint’s allegations as true — is often difficult. Companies should therefore consider front-of-label disclaimers and conduct a cost-benefit analysis of “No Artificial Preservatives” claims in light of the evolving legal landscape.

��Ǳ��’s Class Action Litigation team has substantial experience defending companies in tocopherol and food labeling class actions. If your company has received a demand letter or complaint — or if you want to evaluate your labeling risk before litigation arrives — we encourage you to contact the authors.

The post Tocopherol Class Actions: A Defense Playbook for Food and Beverage Companies appeared first on �鶹ֱ�� & Lardner LLP.

The Seventh Circuit to Issue First Appellate Decision Holding That Text Messages Are Not Covered By Do-Not-Call Provisions of the TCPA

eaheinrich@foley.com — Wed, 05 Aug 2026 19:31:38 +0000

For decades, courts in TCPA litigation assumed that text messages qualify as “telephone call[s]” under Section 227(c)(5) of the Telephone Consumer Protection Act (TCPA), relying primarily on FCC regulations. That assumption now faces serious challenges. In the wake of the Supreme Court’s decision in McLaughlin Chiropractic Associates v. McKesson Corp., 606 U.S. 146 (2025), a growing number of courts have taken a fresh look at the statutory text and held that “text messages” are not covered by Section 227(c)(5) of the TCPA authorizing claims for violations of the federal Do-Not-Call rules. Most notably, on July 14, 2026, the Seventh Circuit issued a ruling in a published case, Steidinger v. Blackstone Medical Services, No. 25-2398, 2026 WL 2028517 at *5 (7th Cir. 2026), which is the first federal appellate decision to weigh in on whether text messages are “telephone calls” for purposes of Section 227(c)(5) post-McLaughlin.

The McLaughlin Sea Change

�鶹ֱ�� & Lardner first reported on the implications of McLaughlin after the decision came out in June 2025. In short, McLaughlin scaled back the deference courts afforded to federal agency interpretations. Under the prior Chevron framework, courts routinely deferred to the FCC’s position that the TCPA’s restrictions on unsolicited telephone calls extended to text messages. McLaughlin instructed courts to afford “proper respect” to agency interpretations rather than automatic deference, empowering independent statutory interpretation.

That shift traces directly to the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which formally overruled the Chevron doctrine after forty years. The Court held that “[t]he Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Loper Bright, 603 U.S. at 391–92. McLaughlin applied Loper Bright to hold that district courts must independently determine the meaning of the TCPA’s provisions rather than treating FCC interpretations — including the FCC’s longstanding position that text messages qualify as “calls” — as binding.

Now, any pre-McLaughlin TCPA decision resting primarily on FCC deference is weakened authority. With FCC deference weakened, courts are now building their analysis from the ground up, starting with the statutory text itself.

The Statutory Text Does Not Define “Telephone Call[s] To Include Texts”

Section 227(c)(5) of the TCPA creates a private right of action for those who have received “more than one telephone call within any 12-month period,” but says nothing about texts. The TCPA itself does not define “telephone call” to include text messages. On July 14, 2026, the U.S. Court of Appeals for the Seventh Circuit joined the growing chorus of district courts in holding that “[r]epeated, unwanted text messages . . . do not fall within the private right of action created by § 227(c)(5).” Steidinger v. Blackstone Med. Servs., No. 25-2398, — F.3d — , 2026 WL 2028517, at *5 (7th Cir. July 14, 2026).

The Steidinger court reinforced this textual conclusion by looking to the TCPA’s broader structure and history. The Court observed that the subsections surrounding § 227(c)(5) (i.e., § 227 (c)(1-4)) consistently use the term “telephone solicitation,” which the TCPA defines to include “the initiation of a telephone call or message,” whereas § 227(c)(5) itself is limited to “telephone call.” 2026 WL 2028517, at *3. Applying the meaningful-variation canon, the court presumed that Congress’s use of a narrower term in § 227(c)(5) than in the neighboring subsections was deliberate, and that “telephone call” and “message” must refer to different forms of communication. Id. (citing Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457–58 (2022); Nielsen v. Preap, 586 U.S. 392, 414 (2019)). The court found this reading reinforced by § 227(d)(1), the TCPA’s fax provision, which shows that Congress in 1991, already understood text-based communications transmitted over a telephone line to be “messages,” not “calls.” Id. The court likewise rejected the plaintiffs’ argument that Congress’s silence on text messages in § 227(c)(5) reflected tacit approval of the FCC’s contrary interpretation, noting that Congress amended § 227(e) in 2018 to expressly define and cover “text message[s]” while leaving § 227(c)(5) untouched — a choice that, if anything, cuts against inferring that “telephone call” already encompassed texts. Id. at *4–*5 (citing Alexander v. Sandoval, 532 U.S. 275, 292 (2001) and Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 424 (2017)). Taken together, the court concluded both the statute’s structure and its legislative history confirm that § 227(c)(5)’s private right of action does not extend to unwanted text messages.

Plain Meaning at the Time of Enactment Suggests That Calls Are Not the Same as Texts

Steidinger further emphasized that the ordinary meaning of “telephone call” in 1991 referred exclusively to voice communication. At that time, “a telephone was ‘[a]n instrument for reproducing sounds at a distance.’” 2026 WL 2028517, at *2 (quoting Webster’s Ninth New Collegiate Dictionary (1991)). And a call meant “to get or try to get into communication by telephone.” Id. Thus, as the Steidinger court noted, in 1991, a “telephone call” referred to communication via sound.

TCPA plaintiffs argue that modern usage treats “call” and “text” interchangeably, but statutory interpretation looks to meaning at enactment, not how language has evolved since. And even in contemporary usage, people routinely distinguish “I’ll call you” from “I’ll text you.”

Congressional Inaction Creates a Space for Judicial Interpretation

Congress has amended the TCPA four times (2005, 2010, 2015, 2019) without expressly adopting the FCC’s position that text messages constitute “telephone call[s]” for purposes of Section 227(c)(5). For example, Congress has changed other portions of § 227 to clarify that text messages are covered. See Consolidated Appropriations Act, § 503(a), § 227(e)(1), (e)(8), 132 Stat. 348, 1091-92 (2018) (amending § 227(e) to cover text messages and defining “text message” for purposes of that subsection). Congress could have done so for purposes of § 227(c)(5), but it did not.

The Seventh Circuit is the first court of appeals to definitively address whether Section 227(c)(5) applies to text messages post-McLaughlin,while district courts have been divided into two camps. Notably, months before Steidinger was decided, the Ninth Circuit held that under Section 227(b)(1) — the TCPA’s separate prohibition on autodialed and prerecorded-voice calls — “a text message is properly deemed to be a ‘call’ within the meaning of the TCPA.” Howard v. Republican Nat’l Comm., 164 F.4th 1119, 1123–25 (9th Cir. 2026). The court reasoned that a text message fits the “plain and ordinary meaning” of “call” as “an attempt to communicate by telephone,” id. at 1123–24 (quoting Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 n.3, 954 (9th Cir. 2009)), and that treating texts as calls serves the TCPA’s privacy-protective purpose because an incoming text creates “an immediate intrusion on privacy comparable to that associated with the ring of an incoming auto-dialed phone call,” id. at 1124.

Although Steidinger distinguished Howard as arising under a different statutory provision — since Section 227(b)’s use of “call” is not the same as Section 227(c)(5)’s “telephone call” — the decision illustrates that the underlying question of whether a text message can be a telephone “call” at all remains unsettled and may ultimately require Supreme Court review.

Implications for TCPA Defendants

For businesses defending Section 227(c)(5) claims based on text messaging, this developing case law opens a potentially powerful defense strategy. Defendants may now have viable grounds to challenge whether Section 227(c)(5) allows plaintiffs to sue over text messages at all — particularly in jurisdictions where courts have shown willingness to engage with statutory text arguments post-McLaughlin.[1]

The stakes are substantial. TCPA claims carry statutory damages of $500 to $1,500 per violation under 47 U.S.C. § 227(b)(3), meaning class actions involving millions of texts can create enormous exposure. The post-McLaughlin recalibration of administrative deference has opened a window for defendants that many thought permanently closed, especially in light of the Steidinger decision. For businesses facing TCPA exposure based on text messaging, this evolving case law presents a meaningful opportunity to challenge liability at the outset of class action litigation. Please contact the authors of this article if you would like to discuss your particular situation further.

[1]It is important to note that the holding in Steidinger does not impact other provisions of the TCPA, including those governing autodialed calls and prerecorded or artificial voice messages under Section 227(b). State law analogues to the TCPA are similarly unaffected, and many states expressly extend their telemarketing and do-not-call protections to text messages.

The post The Seventh Circuit to Issue First Appellate Decision Holding That Text Messages Are Not Covered By Do-Not-Call Provisions of the TCPA appeared first on �鶹ֱ�� & Lardner LLP.

Sweet Victory in ‘Nutritional Drink’ Labeling Suit

eaheinrich@foley.com — Thu, 14 May 2026 20:09:10 +0000

In a sweet win for food-and-beverage defendants, the Eastern District of California dismissed, with prejudice, a putative class action challenging the labeling of Carnation Breakfast Essentials Nutritional Drink products in Eric Testori v. Nestle Health Science US Holdings Inc. The plaintiff alleged that defendant misled consumers by marketing the product as a “nutritional drink” and emphasizing “10g protein” on the product’s front label, while failing to disclose with equal prominence that the product’s first two ingredients were water and sugar and that it contained 11 grams of sugar per serving. According to the plaintiff, those front-label statements created the misleading impression that the product was a balanced, healthful breakfast option, even though it was allegedly a sweetened beverage “primarily made of water and sugar.”

The court rejected that theory at the pleadings stage. First, the court held that all of the plaintiff’s state-law claims were preempted because the case turned on allegedly misleading “health” and “nutritional” messages arising from the product’s sugar content. The court emphasized that the Food and Drug Administration (FDA) has not treated sugar as a disqualifying nutrient in this context, and it adopted the view that state-law claims premised solely on the theory that high sugar content makes health or implied nutrient-content claims misleading are preempted. Relying heavily on the Ninth Circuit’s decision in Clark v. Perfect Bar, the court reasoned that allowing a California misbranding claim based on sugar-level content would indirectly impose a sugar-labeling requirement different from federal law.

The court also found the complaint independently deficient under the reasonable consumer standard. The front label identified specific nutrients, including “10g protein,” “21 vitamins + minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt,” but it did not make an overall claim that the product was “healthy” or part of a “balanced” diet. The court concluded that the plaintiff had not plausibly alleged that an ordinary consumer would view “Breakfast Essentials” or “Nutritional Drink” as an unambiguous representation that the product was nutritionally balanced or low in sugar. Because the front label did not mention sugar and the back label disclosed the amount of added sugar, the court held that a reasonable consumer would not be misled into believing that the product contained low amounts of added sugar.

The decision is a useful reminder that “health halo” complaints may be susceptible to early challenge based on (1) federal preemption and (2) plausible deception. Where a plaintiff’s theory is that disclosed sugar content undermines otherwise accurate nutrient or nutrition-related statements, courts may treat the claim as an impermissible attempt to impose state-law labeling obligations beyond federal requirements. And under the Ninth Circuit’s recent packaging cases, plaintiffs must plausibly allege that the front label is unambiguously deceptive before they can prevent courts from considering clarifying information elsewhere on the package.

For food and beverage manufacturers, the key takeaway is straightforward: accurate nutrient statements, clear Nutrition Facts disclosures, and the absence of an unambiguous front-label promise can be powerful tools to minimize litigation risk. Here, those tools helped the beverage manufacturer defendant secure dismissal of California Consumers Legal Remedies Act, False Advertising Law, Unfair Competition Law, fraud, and unjust enrichment claims with prejudice.

The post Sweet Victory in ‘Nutritional Drink’ Labeling Suit appeared first on �鶹ֱ�� & Lardner LLP.

Annual H-1B Registration Window Opens in March 2026 With New Selection Process

eaheinrich@foley.com — Mon, 02 Mar 2026 22:50:56 +0000

, a division of the U.S. Department of Homeland Security (DHS), recently announced that it will accept from noon EST on March 4, 2026, through noon EST on March 19, 2026. Most employers seeking to employ foreign nationals who have never been in H-1B status must register during this period. Since 2020, USCIS has used an electronic registration system to allocate slots under the annual H-1B limit (H-1B cap). The March period will be the only time this year that USCIS will accept registrations. Through the government’s electronic system, the attorney invites the employer to collaborate on the registration. Together, they prepare, sign, and submit the registration through the online system. The current fee for each registration is $215.

There are two H-1B registration pools: a general pool and a pool for those registrations naming a foreign national who holds an advanced degree from an American college or university. USCIS will place all registrations into the general pool. USCIS will place those registrations involving advanced degrees into an additional pool, increasing the chance of selection. USCIS expects to announce selections by March 31, 2026. Employers selected in the first round will have until June 30, 2026, to prepare and file their H-1B cases. Depending upon various factors, USCIS may make a second round of selections from the existing registrations. If there is a second round, it likely will occur in the mid to late summer.

New Information Required for Registration and New Selection Process

In addition to information about the employer and foreign national, USCIS now will require the employer to state the following under penalty of perjury on the registration:

Wage level under the , using the wage that the employer intends to offer
for the job that the employer will offer
Area of intended employment where the employer will assign the foreign national
The job offer is bona fide (i.e., the employer truly has a position to fill at the time of registration)

USCIS will require this additional information because, under a , the wage level will determine whether the employer’s registration will be entered into one or both pools multiple times.

The DOL states its wage data in four levels, with Level 1 being the entry level and Level 4 being the highest level. For an employer that offers a salary that meets or exceeds Level 4, USCIS will enter that registration into the general pool four times. If the employer’s registration names a foreign national who holds an American advanced degree, USCIS will enter the same registration into the advanced pool four times. Therefore, USCIS will enter such a registration a total of eight times. In the same example, if an employer offers a wage that meets or exceeds Level 2, USCIS will enter the registration in the general pool two times and in the advanced degree pool two times for a total of four entries. If the employer will assign the foreign national to multiple worksites, USCIS will consider the location with the lowest wage level when determining how many times to enter the registration into the pool(s).

This new “weighted selection” for H-1B registrations is separate from the prevailing wage analysis. An employer completes the prevailing wage analysis to prepare its Labor Condition Application for filing with the DOL in an H-1B case. The Labor Condition Application shows that, under DOL rules, the employer will pay the higher of the actual or prevailing wage for the job offered. The H-1B registration weighted selection is based solely on the salary offered, not the prevailing wage.

Fraud Deterrents

USCIS has created several safeguards to deter employers from inflating the salary offered on the registration to gain an unfair advantage. For example, after USCIS selects a registration, the federal agency will require the employer to submit evidence of how it determined the wage level as stated on the registration. Such evidence may include the DOL prevailing wage data sheet for the occupation in the geographic area (showing the DOL wage levels), the employer’s reason for assigning the foreign national to a particular worksite location, and the employer’s internal salary analysis. Further, USCIS has issued a new version of its H-1B petition, which is mandatory beginning on April 1, 2026. This petition asks for more detailed information about the foreign national’s qualifications, including the individual’s education, experience, skills, and other background. USCIS will use this information to assess the employer’s determination of the salary offered. USCIS will pay particular attention to any employer that successfully completes an H-1B case only to seek an amendment shortly thereafter to decrease the salary offered or change the worksite location to a geographic area with lower wages.

Increased Government Investigations

Just as USCIS and other divisions of DHS are focusing on compliance issues, the DOL is increasing H-1B compliance audits. Through , the DOL intends to investigate more aggressively whether employers are complying with their H-1B obligations on pay and related issues. Employers will be subject to a higher risk of site visits and investigations by the DHS and DOL in 2026 and beyond.

Best Practice: With the new procedures and the higher risk of compliance investigations, employers seeking H-1B authorization under the new cap must proceed carefully throughout the H-1B process (ensuring no discrepancies across the registration, H-1B case, and H-1B employment).

For further information on these issues, please contact your �鶹ֱ�� & Lardner LLP attorney.

The post Annual H-1B Registration Window Opens in March 2026 With New Selection Process appeared first on �鶹ֱ�� & Lardner LLP.

Consumer Financial Protection Bureau Proposes New Rules Reducing Regulatory Burdens on Consumer Reporting Agencies

christina.reilly@829llc.com — Thu, 11 Sep 2025 14:51:14 +0000

The Consumer Financial Protection Bureau (the “Bureau”) recently announced two new interpretive rules that, if implemented, will significantly reduce regulatory burdens on many consumer reporting agencies (CRAs).

First, on August 8, 2025, the Bureau issued a notice of proposed rulemaking announcing its intention to amend the test to define larger participants in the consumer reporting market. Pursuant to 12 U.S.C. § 5514(a)(1)(B), the Bureau has supervisory authority over “a larger participant of a market for other consumer financial products,” including consumer reporting products. The Bureau’s current Consumer Reporting Larger Participant Rule (published on July 20, 2012) defines larger participants as those with more than $7 million in annual receipts resulting from relevant consumer reporting activities. However, the Bureau expressed concern that the benefits of this threshold for larger participants are outweighed by the compliance burdens imposed on CRAs, especially where most companies subject to Bureau examination under the Consumer Reporting Larger Participant Rule have annual receipts exceeding $50 million. In recognition of this data, the new proposed rule would increase this threshold for larger participants to $41 million in annual receipts to match the Small Business Administration’s threshold for defining small businesses.

The Bureau estimates that the higher threshold for defining larger participants will leave only six larger participants in the CRA market, removing all other CRAs from the Bureau’s supervisory authority and greatly reducing regulatory compliance burdens for CRAs that are no longer defined as larger participants. Comments on this proposed rule are due by September 22, 2025.

Second, on August 26, 2025, the Bureau issued a notice of proposed rulemaking seeking to “adopt a standard definition of ‘risks to consumers with regard to the offering or provision of consumer financial products or services’” to govern the Bureau’s supervisory powers over nonbank covered persons. The proposed rule addresses a long-dormant provision of the Consumer Financial Protection Act of 2010 (“CFPA”) which authorizes the Bureau to supervise nonbank covered persons that the Bureau has reasonable cause to determine have engaged in conduct which “poses a risk to consumers with regard to the offering or provision of consumer financial products or services.” 12 U.S.C. § 5514(a)(1)(C).

Prior to issuing updated examination procedures in April 2022, the Bureau had not exercised its authority under § 1024(a)(1)(C) to examine nonbank persons based on the “risk to consumers” standard. Despite its decision to issue supervisory designation orders under this provision, the Bureau has yet to issue guidance on the meaning of “risk to consumers,” instead making that determination on an ad hoc basis in individual orders.

The proposed rule seeks to promote certainty and consistency in the Bureau’s exercise of its supervisory authority of nonbanks by defining “conduct which poses risks to consumers” to consist of conduct that: “(a) presents a high likelihood of significant harm to consumers; and (b) is directly connected to the offering or provision of a consumer financial product or service as defined in section 1002 of the CFPA.” The Bureau’s preliminary view, subject to comment, is that Congress intended that the Bureau focus its supervisory resources on serious conduct presenting a non-speculative risk of material harm to consumers, contrary to the broad interpretation seen in some prior supervisory designation orders under this section. The Bureau specifically requested comment on whether the “risk to consumers” sufficient to warrant supervision must involve potential violations of law. The deadline for the public to comment on the proposed rule is September 25, 2025. While the final rule remains subject to public comment, the Bureau states that it believes that the proposed rule will make it less likely that any specific entity will be designated for supervision.

The Bureau has expressly stated that it expects these two proposed rules to significantly reduce the regulatory burden on nonbank participants generally, and especially on entities with less than $41 million in annual receipts from consumer reporting activities. If the proposed rules are adopted, most CRAs can expect to benefit from the reduced regulatory burden.

The post Consumer Financial Protection Bureau Proposes New Rules Reducing Regulatory Burdens on Consumer Reporting Agencies appeared first on �鶹ֱ�� & Lardner LLP.

The Supreme Court Reins in Agency Power Again: What McKesson Means for TCPA Litigation

Mon, 30 Jun 2025 16:45:10 +0000

The Supreme Court recently signaled a further shift away from judicial deference to administrative rulings. The question of whether the Telephone Consumer Protection Act (TCPA or “the Act”) covers online faxes (think your email inbox) in addition to standard paper faxes (think old paper scrolls) has divided federal courts for years. Compare Urgent One Med. Care, PC v. Co-Options, Inc., 2022 WL 16755154, at *6 (E.D.N.Y. June 1, 2022) (TCPA covers online faxes) and Ambassador Animal Hosp., Ltd. v. Hill’s Pet Nutrition, Inc., 2021 WL 3043422, at *1 (N.D. Ill. Feb. 17, 2021) (TCPA covers faxes sent to computers in addition to traditional fax machines) with Licari Family Chiropractic, Inc. v. Eclinical Works, LLC, 2021 WL 4506405, at *5 (M.D. Fla. Jan. 11, 2021) (the TCPA does not apply to online fax services) and Advanced Rehab & Med., P.C. v. Amedisys Holding, LLC, 2020 WL 4937790, at *3 (W.D. Tenn. Aug. 24, 2020) (same).

While many defendants had hoped that the Supreme Court would endorse the agency view that precluded TCPA actions based on faxes that, for example, were sent to email accounts, the Supreme Court has left that question open on remand in its recent decision in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. ___ (2025). This means that companies and retailers will need to evaluate their own risk tolerance under the TCPA as lower courts continue to evaluate, without being bound by the Federal Communications Commission (FCC), whether online faxes can constitute advertisements under the Act. Moreover, the Supreme Court’s decision opens the door for challenges to prior FCC interpretation of the TCPA generally.

From Chevron to McKesson: Shrinking Scope of Agency Deference

In 2014, McLaughlin sued McKesson in the Northern District of California, arguing McKesson violated the TCPA by faxing unsolicited advertisements both through a traditional fax machine and through online fax services such as email or an online portal. In an unrelated 2019 declaration, the FCC ruled that “an online fax service is not a ‘telephone facsimile machine.’” In re Amerifactors Financial Group, LLC, 34 FCC Rcd. 11950, ¶ 11 (2019) (declaratory ruling). The Northern District of California held that it was bound by the FCC’s ruling and that McKesson was entitled to summary judgment on McLaughlin’s claims involving alleged TCPA violations associated with online fax services. True Health Chiropractic, Inc. v. McKesson Corp., No. 13-cv-2219 (N.D. Cal., Dec. 24, 2020). The Ninth Circuit affirmed and agreed that the District Court was bound by the FCC’s ruling. True Health Chiropractic, Inc. v. McKesson Corp., No. 22-15710, 2023 WL 7015279 (9th Cir. Oct. 25, 2023). The Supreme Court reversed, holding that the district court is not bound by the FCC’s interpretation of the TCPA, and left the issue of whether online faxes fall under the TCPA open on remand.

The Supreme Court’s ruling further erodes agency deference and establishes a new default rule for statutes that allow for pre-enforcement review, which it divides into three categories. First, there are statutes, such as the Clean Water Act, which expressly preclude judicial review following the pre-enforcement review process. The Court ruled that, by their very nature, these statutes cannot be subject to judicial review once the pre-enforcement period has elapsed. On the other end of the spectrum are statutes that expressly authorize review in subsequent enforcement proceedings, such as the Toxic Substances Control Act. In between these two categories are statutes that neither expressly preclude nor authorize judicial review in subsequent enforcement proceedings, such as the Hobbs Act at issue in McKesson. The Court held that, in the absence of clarifying language, district courts are allowed to review an agency’s statutory interpretation even after the pre-enforcement review period has elapsed. Put differently, the expectation moving forward is that judicial review of statutory interpretation will be permitted absent specific statutory language to the contrary.

The Court based its decision on a presumption of judicial review codified in Section 703 of the Administrative Procedure Act, which provides that “[e]xcept to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.” (emphasis in original.) The Court emphasized that “the default rule is only a default, meaning that it applies only absent congressional indication otherwise.” Finally, the Court reasoned that its ruling would limit unfairness, as many entities subject to agency rules or orders may not realize they are impacted until after the pre-enforcement review period ends.

The McKesson decision represents another example of the Court placing less weight on administrative rulings. It is not difficult to see the through line between McKesson and the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which ended Chevron deference almost a year to the day before the McKesson ruling. 603 U.S. 369 (2024). In addition, the McKesson opinion quotes Corner Post, Inc. v. Board of Governors, another recent Supreme Court decision that extended the statute of limitations for which an agency’s rules can be challenged for the notion that “parties may always assail a regulation as exceeding the agency’s statutory authority in enforcement proceedings against them.” 603 U.S. 799, 823 (2024). The Court’s apparent preference to give less credence to administrative rulings warrants further monitoring as more decisions percolate, and it is a fair expectation that the Court will continue to redistribute authority away from administrative agencies moving forward.

�ѳ��ǲ�’s Impact on the TCPA Litigation Landscape

The FCC has issued numerous orders and declaratory rulings interpreting the decades old TCPA and its application to modern technology. See, e.g., In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14115 (2003) (the TCPA applies to both audio calls and text messages); In re Rules and Reguls. Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Declaratory Ruling, DA 20-670 (rel. June 25, 2020) (peer-to-peer texting platforms do not constitute autodialer technology if certain requirements are met); In the Matter of Implications of Artificial Intelligence Technologies on Protecting Consumers from Unwanted Robocalls and Robotexts, CG Docket No. 23-362, Declaratory Ruling, FCC 24-17 (rel. Feb. 8, 2024). The FCC’s statutory determinations regarding the TCPA have generally been viewed as settled and have provided companies and retailers with guidance for interpretation of the TCPA. However, the Supreme Court’s ruling in McKesson renders the FCC’s prior determinations as ripe for scrutiny and challenge in courts across the country. Although the Supreme Court’s decision in McKesson advises district courts to afford “appropriate respect to the agency’s interpretation,” they are “not bound by” it and are advised to interpret the TCPA under ordinary principles of statutory interpretation. This development not only opens the door for plaintiffs to argue for expanded protections under their interpretation of the TCPA but also allows for defendants to argue for a more limited scope of the Act and the ability to raise defenses that may have been foreclosed by prior FCC interpretation.

We predict increased litigation as a result of the uncertainty surrounding TCPA interpretation and will continue to monitor and report on developments regarding TCPA interpretation and the FCC’s role in the space. In the meantime, parties should pay careful attention to the law in their respective circuit, recognizing that FCC authority alone is not binding.

The post The Supreme Court Reins in Agency Power Again: What McKesson Means for TCPA Litigation appeared first on �鶹ֱ�� & Lardner LLP.

Will Supreme Court Punt on Circuit Split Over Article III Standing in Class Actions?

bklemm@foley.com — Wed, 30 Apr 2025 22:37:02 +0000

On April 29, 2025, the Supreme Court heard argument on an issue that has divided the circuits: “Whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury?” The case is, and the court’s decision could have a significant impact on class action litigation across the country. But the justices’ questions at oral argument highlighted a procedural wrinkle that could prevent the court from resolving this hotly contested issue.

The named plaintiffs in LabCorp are legally blind individuals who allege that they are unable to use the self-service check-in kiosks installed at LabCorp’s patient service centers. Based on these allegations, the plaintiffs assert claims for damages under the Americans with Disabilities Act and California’s Unruh Act.

In May 2022, the district court certified a damages class under Rule 23(b)(3) comprising all legally blind individuals in California who visited a LabCorp patient service center and “were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations due to LabCorp’s failure to make its e-check-in kiosks accessible to legally blind individuals.” In August 2022, following a motion by plaintiffs to modify the class definition to eliminate any “fail safe” language (generally, a class defined in a way that depends on determination on the merits), the district court issued an order redefining the damages class as all legally blind individuals who visited a LabCorp patient service center “but were unable to use the LabCorp Express Self-Service kiosk.”

LabCorp filed an interlocutory appeal from the district court’s May 2022 order, challenging certification on the ground that the class included members who lacked Article III standing. LabCorp argued that some legally blind individuals who visited a LabCorp patient service center preferred not to use a self-service kiosk. According to LabCorp, those individuals did not suffer any injury but would nonetheless be included in the class.

The Ninth Circuit affirmed the district court’s order. Citing its decision , the Ninth Circuit explained that “LabCorp’s allegation that some potential class members may not have been injured does not defeat commonality at this time.” .

In its briefing in the Supreme Court, LabCorp framed the issue principally in terms of whether Article III of the Constitution forbids certification of a class that includes uninjured members. Alternatively, it argued that individualized issues will necessarily predominate over any common issues when a class contains an appreciable number of uninjured members, making certification improper under Rule 23(b)(3).

But at oral argument, the justices expressed concern about the fact that LabCorp only filed an appeal from the district court’s May 2022 certification order — not its subsequent August 2022 order that redefined the class to remove any “fail safe” language. That procedural quirk creates two potential problems for LabCorp and for the Supreme Court as it attempts to resolve this case. First, as plaintiffs’ counsel emphasized during oral argument, LabCorp’s arguments regarding uninjured class members appear to be directed primarily at the revised class definition in the August 2022 order, not the original class definition in the May 2022 order that was the subject of LabCorp’s appeal. Second, to the extent LabCorp is challenging the May 2022 order, that order has arguably been rendered a nullity by the district court’s subsequent August 2022 order.

A decision on the merits from the Supreme Court would bring much needed clarity to questions about Article III or predominance under Rule 23(b)(3). Following oral argument, it remains to be seen whether the court will actually reach the merits in this particular case. However, given the fact that the petition for a writ of certiorari was granted in LabCorp, the court clearly has expressed an interest in addressing the underlying issues at some point.

We will provide additional updates here once the Supreme Court acts. In the meantime, parties should pay careful attention to the governing law in their respective circuit, while keeping in mind that the law in this area could soon be clarified.

The post Will Supreme Court Punt on Circuit Split Over Article III Standing in Class Actions? appeared first on �鶹ֱ�� & Lardner LLP.

No Harm, No Foul: Greenwashing Lawsuit Dismissed for Lack of Article III Standing

bklemm@foley.com — Tue, 11 Mar 2025 17:16:16 +0000

It is well-settled that under Article III of the Constitution, United States federal courts are limited to trying “cases and controversies.” Moreover, a case or controversy exists only if a plaintiff has standing to file the suit, requiring the plaintiff to demonstrate injury in fact, causation, and redressability. On February 19, 2025, the United States District Court for the Southern District of Florida issued a noteworthy decision and dismissed a putative class action lawsuit filed against lululemon athletica inc., and lululemon usa inc. (“Lululemon”) without leave to amend for lack of Article III standing.

A group of consumers filed the lawsuit alleging that Lululemon made “false, deceptive, and misleading representations” regarding the company’s products and actions as they relate to environmental initiatives in accordance with the company’s “Be Planet” campaign. Gyani v. Lululemon USA Inc., et al., 2025 WL 548405, *1 (S.D. Fla.). For example, the plaintiffs alleged that Lululemon’s website stated that it is “committed to making products that are better in every way-for…the planet.” Id. at *2. In fact, according to the plaintiffs, “Lululemon is responsible for significant GHG gas emissions, landfill waste, and release of microplastics into the environment.” Id. The plaintiffs claimed that they relied on various misrepresentations from the “Be Planet” campaign in deciding to purchase Lululemon products. Id.

The court dismissed plaintiffs’ claims, which were premised on alleged violations of various states’ consumer protection statutes. First, the court found the plaintiffs failed to adequately plead an injury in fact to support claims for monetary damages. The court highlighted that “mere allegations of having paid a price premium are insufficient — a plaintiff must tie the value of the product to any purported misrepresentations.” Id. at 4. On this point, the court found Valiente v. Publix Super Mkts., Inc., 2023 WL 3620538 (S.D. Fla. May 24, 2023) instructive. In Valiente, a plaintiff allegedly purchased cough drops due to the “phrase ‘honey lemon,’ the ‘pictures of these ingredients,’ and the statement that the product ‘soothes sore throats.’” The court dismissed the plaintiff’s claim for lack of injury because the plaintiff failed to allege that the cough drops were in any way “defective” or “worthless.” Id. at *5. The court in Gyani found the facts before it similar in that the plaintiffs’ complaint failed to allege Lululemon’s products were defective or worthless. 2025 WL 548405, *4. Moreover, the plaintiffs failed to allege deceptive or unfair acts as to the products themselves, failing to connect the allegedly problematic “Be Planet” statements to the price premium the plaintiffs alleged that they paid for Lululemon’s products. Id. at *5.

Next, the court held that the plaintiffs failed to plead an injury in fact to support a claim for injunctive relief. The court relied on Williams v. Reckitt Benckiser LLC, 65 F.4th 1243 (11th Cir. 2023) and Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125 (S.D. Fla. 2021), where the plaintiffs alleged that they “would like” to purchase the company’s products in the future “if” the defendant improved the products at issue. In Gyani, the complaint similarly alleged that the plaintiffs “would like” to purchase Lululemon’s products, however, “only if” the plaintiffs “can rely on Lululemon ‘to be truthful in their marketing statements regarding the sustainability and environmental impact of Lululemon’s products and actions.’” 2025 WL 548405, *5. The court held that such allegations failed to demonstrate harm that was actual or imminent.

Finally, the court refused to grant leave to amend. Id. at *6. The court held that the plaintiffs’ request was procedurally improper in that the plaintiffs embedded the request in their opposition brief rather than making the request via motion. Id.

Retailers and manufacturers concerned with risk associated with a growing number of environmental or “green” marketing claims will certainly welcome the Gyani decision. The ruling emphasizes that plaintiffs must demonstrate concrete economic injury linked to the at-issue marketing claims to pursue monetary relief as well as a real and immediate threat of future harm to seek injunctive relief; general allegations relating to a price premium and an equivocal desire to make future purchases are not enough. However, the decision certainly will not put an end to putative class actions asserting greenwashing claims. If faced with a similar lawsuit, retailers and manufacturers should consider whether to seek dismissal at the pleading stage when the complaint does not tie the alleged misrepresentations to the value of the product and/or does not adequately allege any real threat of future harm.

The post No Harm, No Foul: Greenwashing Lawsuit Dismissed for Lack of Article III Standing appeared first on �鶹ֱ�� & Lardner LLP.

CFPB, FDIC, and OCC Updates: Firings, Appointments, and Potential Consolidation

bklemm@foley.com — Tue, 25 Feb 2025 17:02:46 +0000

We previously reported on changes to leadership at the Consumer Financial Protection Bureau (CFPB), the halt of all activities at the CFPB, and the impacts to the financial services industry. The environment continues to evolve, intensifying uncertainty for regulation and the industry, as the federal agencies responsible for regulating the financial services industry, including the CFPB, the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (OCC) (collectively, “the Agencies”), are impacted by the new administration’s overhaul of regulatory agencies.

CFPB

As discussed in our previous articles, temporary leadership at the CFPB included Treasury Secretary Scott Bessent, named as acting director of the CFPB by President Trump on January 31, 2025, and the Director of the Office of Management and Budget (OMB) Russell Vought, named as acting director of the CFPB on February 7, 2025. Under Bessent and Vought, all CFPB activities were halted, the CFPB’s headquarters were closed beginning the week of Feb. 10, and the next CFPB funding draw from the Federal Reserve was canceled.

On February 11, 2025, President Trump appointed Jonathan McKernan to be the permanent Director of the CFPB, pending Senate confirmation. McKernan, most recently a member of the Board of Directors at the FDIC, will lead the CFPB following his confirmation hearing, leaving Vought head of the CFPB until then. Additionally, Mark Calabria, who headed up the Fair Housing Finance Administration (the current Receiver for Fannie Mae and Freddie Mac) during the first Trump administration, is reportedly working with the OMB as a liaison to the CFPB and working on centralizing the Agencies under OMB, pursuant to a February 18 (EO).

Amidst the halt to activities, it’s been reported that more than 70 CFPB employees have been fired and more than $100 million in vendor contracts have been canceled. The appointment of a permanent CFPB Director with extensive regulatory agency experience may be a sign that the CFPB will remain, albeit significantly reformed under the new administration. However, with President Trump and the Department of Government Efficiency’s (DOGE) Elon Musk calling for a complete dismantling of the CFPB, the future of the CFPB still remains to be seen.

FDIC & OCC

The FDIC staff has been significantly reduced in recent weeks, with approximately 500 employees accepting the Trump administration’s deferred resignation buyouts and 170 probationary employees terminated as well as the rescission of more than 200 job offers. The OCC similarly has begun layoffs, with around 76 employees reportedly terminated as of February 21, 2025.

Travis Hill was named Acting Chairman of the FDIC Board of Directors on January 20, 2025, and has since promised to conduct a wholesale review of bank regulations, guidance, and manuals. Hill most recently served as Vice Chairman of the FDIC and previously served as senior counsel at the United States Senate Committee on Banking, Housing, and Urban Affairs. At the OCC, Acting Comptroller Rodney Hood replaced then-Acting Comptroller Michael J. Hsu on February 7, 2025. Hood was most recently on the National Credit Union Administration Board (NCUA).

Potential Agency Consolidation or Centralization?

In addition to the above mentioned centralization of Agencies under the OMB, speculation in the industry was further fueled by that the OCC was planning to accept the transfer of employees from both the FDIC and CFPB. The OCC quickly denied these assertions.

The reports came a day after an EO, “Ensuring Accountability for All Agencies” which requires previously independent agencies to submit any new regulations to the White House, regularly coordinate policies and priorities with the White House, and establish White House Liaison offices. The EO applies to the FDIC, OCC, and FTC, among others, but specifically excludes the Board of Governors of the Federal Reserve System. Notably, and perhaps most controversially, the EO states that the president and attorney general have the sole authority to interpret laws for the executive branch and that no agency employee may provide interpretations that contravene that of the president and attorney general, including through “issuance of regulations, guidance, and positions advanced in litigation.”

Potential Impacts

While the implications of the EO and potential centralization are still unfolding, many in the industry have been eager to see either the elimination or reform of the CFPB. On the other hand, many are weary of the regulatory burden presented by an inconsistent state-by-state regulatory scheme in lieu of federal regulatory frameworks and the uncertainty stemming from these executive actions. However, the appointment of Agency heads and OMB officials with years of both industry and regulatory experience under their belts may be a sign that the Agencies aren’t going anywhere any time soon.

Legal challenges have already been levied against several of the above discussed actions, ensuring uncertainty regarding their near- and long-term effects. For example, the National Treasury Employees Union a temporary injunction to block further firings at the CFPB. Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia has issued an approving the pause on CFPB firings as well as prohibiting the deletion of CFPB data.

As discussed in our prior article, financial institutions should continue to comply with applicable laws and regulations, despite the current upheaval. While uncertainty over the enforcement and rulemaking authority at the Agencies continues, until a complete shuttering of certain agencies and/or recission of federal regulations, financial institutions should plan to comply with all applicable laws and regulations.

Additionally, we continue to expect increased state activity both in legislation and enforcement, which echo initiatives taken by the Agencies. For example, New York has already introduced to limit overdraft fees, similar to the CFPB’s finalized — but not yet effective — . A particularly efficient legislative development is (HB 2515), which was introduced January 8, 2025, and approved by Virginia’s legislature in a little over a month on February 18, 2025. HB 2515 amends the Virginia Consumer Protection Act by adding prohibited practices, including limitations on mandatory fees and mandating credit card surcharge disclosures.

Need Assistance?

We anticipate continued legal challenges in this space as well as increased state regulatory activity. We continue to monitor the situation at the Agencies and will provide updates as appropriate. If you have any questions relating to any of the issues discussed above, ��Ǳ��’s Financial Services Regulatory Group is well versed in federal and state laws and regulations impacting the financial services industry. �鶹ֱ�� actively counsels clients on compliance issues as well as providing enforcement and litigation support. For more information, please contact any of the authors of this article or your �鶹ֱ�� & Lardner attorney.

A version of this article was published in on May 2, 2025.

The post CFPB, FDIC, and OCC Updates: Firings, Appointments, and Potential Consolidation appeared first on �鶹ֱ�� & Lardner LLP.

Federal Communications Commission’s One-to-One Consent Rule Under Telephone Consumer Protection Act Vacated Day Before Rule Set to Take Place

bklemm@foley.com — Mon, 27 Jan 2025 16:30:28 +0000

On Monday, January 27, 2025, the One-to-One Consent Rule (“the Rule”) promulgated by the Federal Communications Commission (the “Commission”) a year ago, on December 18, 2023, was set to go into effect.[1] Under this Rule, a consumer could not consent to a telemarketing or advertising robocall unless (1) he consents to calls from only one seller at a time, (2) he receives a clear and conspicuous disclosure that he will receive telemarketing calls or texts using an automatic telephone dialing system or an artificial or prerecorded voice, and (3) he consents only to calls whose subject matter is “logically and topically associated with the interaction that prompted the consent.”[2] The Commission viewed the Rule primarily as a way to prevent lead generators from using single consumer consent on the comparison shopping websites that often are the source of lead generation.[3] But the Rule was not limited to lead generators. Rather, it applied to all entities utilizing — themselves or through their vendors, affiliates, or other third parties — telemarketing calls or texts using regulated technology. The Rule thus required these businesses to overhaul their consent collection flows, revise contracts with vendors and other third parties, and otherwise reassess their business operations. The Rule also portended a substantial increase in Telephone Consumer Protection Act (TCPA) litigation, particularly as the key terms in the Rule — such as what it means to be “logically and topically associated with the interaction that prompted the consent” — were undefined.

Businesses subject to the One-to-One Consent Rule got their lucky break on Friday, January 24, 2025, the last business day before the Rule was set to go in effect. Initially, the Commission, acting sua sponte, issued an order postponing the effective date of the One-to-One Consent Rule by 12 months — to January 26, 2026 — or until the date specified in a public notice after the U.S. Court of Appeals for the Eleventh Circuit issues a decision on the petition filed by the Insurance Marketing Coalition (IMC) challenging the Rule (whichever is sooner).[4] The Commission found that, given the advanced stage of the judicial proceedings in the Eleventh Circuit, the litigation risks presented by the Rule for texters and callers acting in good faith, and concerns about the industry’s readiness for immediate compliance with the Rule, it was in the interest of justice to postpone the effective date of the rule.[5]

The Eleventh Circuit did not leave folks waiting for long. That same Friday afternoon, the court issued an opinion finding that the Commission exceeded its statutory authority under the TCPA because the new consent restrictions in the Rule “impermissibly conflict with the ordinary statutory meaning of ‘prior express consent.’”[6] In particular, the Eleventh Circuit noted that the term “prior express consent” as used in the TCPA statute only requires a consumer to “clearly and unmistakably” state that they are willing to receive the robocall — and says nothing about requiring one-to-one consent.[7] Nor does it say anything about the consumer’s consent being limited to calls that are “logically and topically associated with the interaction that prompted the consent.”[8] Thus, the requirements for a consumer to separately and independently consent to receive robocalls from each individual seller and for the robocalls to be “logically and topically associated with the interaction that prompted the consent” were contrary to the plain meaning of the statute; thus, they were in excess of the Commission’s statutory authority to implement the TCPA.[9] What is more, rather than remand the matter back to the agency, the Court altogether vacated the One-to-One Consent Rule.[10]

As a result of these two actions, the Commission is back to square one and will need to decide whether to pursue any further action to revive the One-to-One Consent Rule as well as whether it can be done in light of the Eleventh Circuit’s holding. More importantly, the business community does not need to worry about compliance with the Rule and can continue operating under the status quo, which still requires obtaining express written consent for marketing outreaches using regulated technology.

1 Second Report and Order, In re Matter of Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls, 38 FCC Rcd. 12247, 12258-69 (2023) (the “2023 Order”). The 2023 Order would, in relevant part, revise 47 C.F.R. § 64.1200(f)(9).

2 Id. at 12297.

3 Id. at 12258, ¶ 30.

4 FCC Order dated Jan. 24, 2025, In re Matter of Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls,issued by Eduard Bartholme III, Acting Chief, Consumer and Government Affairs Bureau.

5 Id. ¶ 4.

6 Ins. Marketing Coalition Limited v. FCC, Case No. 24-10277 (Jan. 24, 2025), Slip Op. at 4.

7 Id. at 18.

8 Id. at 20-21.

9 Id. at 18-22.

10 Id. at 25.

The post Federal Communications Commission’s One-to-One Consent Rule Under Telephone Consumer Protection Act Vacated Day Before Rule Set to Take Place appeared first on �鶹ֱ�� & Lardner LLP.