The Texas Supreme Court ruled this morning that Texans did not acquire the right to privately invoke the federal Telephone Consumer Protection Act (“TCPA”) until the Texas Legislature amended the Business & Commerce Code to allow Texas court to hear private suits based on the TCPA on September 1, 1999. The TCPA, which was passed in 1991, allowed individuals to sue companies that send unsolicited facsimile advertisements “if otherwise permitted by the laws or rules of court of a State.” The Act, which was required as many if not all of these faxes come from across state lines, also requires fax recipients to sue in state courts. However, Texas did not pass corresponding legislation allowing private claims under the TCPA until 1999. According to the Texas Supreme Court, therefore, companies that sent unsolicited fax advertisements after the TCPA was enacted but before September 1, 1999, got a free pass (at least in Texas) on what was clearly illegal conduct under federal law. The Court therefore reversed and rendered judgment on behalf of defendants in the underlying case, were the faxes in question were transmitted prior to 1999. Cause No. 04-0570, The Chair King, et al. v. GTE Mobilnet of Houston, Inc. et al. Technorati Tags: litigation, Texas Supreme Court, law

This morning, the Third Court of Appeals affirmed a Travis County trial court decision to grant a summary judgment in favor of the Comptroller’s office in a putative class action case which alleged that the Comptroller’s failure to pay interest on property returned to Texans under the Unclaimed Property Act constituted a taking. While the court’s analysis of the Unclaimed Property Act is perhaps not of general interest, the opinion does begin with an interesting discussion of the unusual results which Travis County’s Central Docket can inspire. In this case, the State filed a motion for summary judgment on the merits prior to the class certification hearing. Judge Keel heard the motion and denied it. Judge Triana then denied the State’s Motion for Rehearing. Judge Keel’s decision was apparently a result of the State’s having made an internal book-keeping error, which made it appear as though the State had in fact earned a great deal of interest on the unclaimed property it held on behalf of the putative class, which was not in fact eventually returned along with the property. After the State lost its MSJ and motion for rehearing, it apparently corrected and explained the clerical error and demonstrated that no interest was in fact earned. Judge Jenkins, presiding over the class certification hearing, actually ended up granting the state’s already-denied motion for summary judgment. The Third Court of Appeals included some of Judge Jenkins’ comments from the hearing expressing concern in its opinion, and it concluded that Judge Jenkins acted perfectly appropriately, as he had the power to set aside any interlocutory orders at any time before judgment (or actually until the Court’s plenary power had expired.) This opinion, therefore, could be quite useful for anyone practicing in Austin’s central docket who finds him or her self arguing that a trial judge can and perhaps ought to revisit an earlier decision by one of his or her colleagues Cause No. 03-05-00212-CV, Clark, et al. v. Texas Comptroller of Public Accounts Technorati Tags: litigation, Third Court of Appeals, law

This morning, the Texas Supreme Court issued a mandamus opinion in an arbitration case holding that a fired worker’s defamation claim against her erstwhile employer was subject to an arbitration agreement, which required arbitration of personal injury claims. According to the Court, since the agreement was susceptible to two reasonable interpretations, one holding that defamation is a personal injury and one holding that it is not, arbitration was required. The opinion also raises an interesting procedural issue. The arbitration agreement was similar to the one from Halliburton, in that it was given to a longtime employee who was told “to continue working here you must sign this.” The agreement, which was signed in 2000, was replaced by a slightly different version in 2002, but the employee was not required to sign the 2002 version. The 2002 version specifically provided that defamation cases must be arbitrated, so the employer initially argued that it applied, rather than the 2000 version. Eventually, however, the employer apparently shifted tactics, and argued instead that the 2000 agreement clearly applied, and it covered defamation (which makes one wonder why they felt the need to amend it). So, the Court did not really reach the issue of the extent to which an employer can modify these kind of agreements by simply providing an employee with a new version – an issue which comes up all the time, particularly in the credit card context. The Court seems to imply, however, that it would not look favorably on an agreement to arbitrate which allowed the employer to “retain a unilateral right to modify the agreement.” In Re: Dillard Department Stores, Inc., Cause No. 05-0250 Technorati Tags: arbitration, ADR, Texas Supreme Court, law

As you may or may not recall, we discussed the doctrine of McCarran-Ferguson Reverse Preemption some time ago and noted that it was working its way through the Texas Courts of Appeals. This past week (on January 11 actually), the Fifth Circuit weighed in, affirming a trial court denial of a motion to compel arbitration on McCarran Ferguson grounds. Under Mississippi law, an uninsured motorist automobile insurance policy cannot require arbitration of claims arising under it. Mississippian Jack Inman got into a coverage dispute with his UM carrier which the carrier tried to send to arbitration, arguing that the FAA preempted the Mississippi statute. The district court disagreed, holding that since the Mississippi law was designed to regulate the business of insurance, the McCarran Ferguson Act precluded its preemption by the FAA. The Fifth Circuit affirmed and provided a short opinion (link is to .pdf file) that nicely explains the doctrine of McCarran Ferguson Reverse Preemption in the circuit. American Bankers Ins. Co. of Florida v. Inman, Cause No. 04-61131 Technorati Tags: arbitration, ADR, Fifth Circuit, Texas Supreme Court