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On March 31, 2017, the D.C. Circuit held that the Federal Communications Commission (FCC) lacked authority under the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act (collectively, the TCPA), to issue a rule, known as the “Solicited Fax Rule,” requiring businesses to include opt-out notices on solicited fax advertisements. Bais Yaakov of Spring Valley, et. Al. v. Federal Communications Commission and United States of America, No. 14-1234 (D.C. Cir. Mar. 31, 2017). Following this ruling, FCC Chairman Ajit Pai issued a statement praising the ruling, reiterating his earlier criticism that the FCC’s approach to interpreting the law in the Solicited Fax Rule reflected “convoluted gymnastics.” The decision in Bais Yaakov and Chairman Pai’s statement may have implications beyond the Solicited Fax Rule, as other FCC interpretations of the TCPA arguably deviate from the statutory text in a manner similar to the Solicited Fax Rule. Accordingly, Bais Yaakov may signal an opportunity for TCPA defendants to pursue new challenges to the FCC’s rulemaking authority in opposition to questionable agency interpretations.

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Photo of Gregory E. Ostfeld Gregory E. Ostfeld

Gregory E. Ostfeld is Vice Chair of the firm’s Pharmaceutical Medical Device & Health Care Litigation Practice and Co-Chair of the Chicago Litigation Practice. For more than two decades, Greg has focused on providing outstanding representation and exceptional service to clients in regulated…

Gregory E. Ostfeld is Vice Chair of the firm’s Pharmaceutical Medical Device & Health Care Litigation Practice and Co-Chair of the Chicago Litigation Practice. For more than two decades, Greg has focused on providing outstanding representation and exceptional service to clients in regulated industries, with a focus on pharmaceutical and medical device companies, the financial services sector, and the consumer products sector.  Greg focuses his litigation and appellate practice on class actions, products liability, and other high-stakes litigation, combining innovative strategies with a deep understanding and appreciation of his clients’ business goals and objectives to deliver superior outcomes. Greg’s litigation practice is nationwide; he has handled individual, multi-district, and consolidated cases at the trial court level in dozens of states, and has led appeals in nearly every federal appellate court and approximately two dozen state appellate courts. The pillars of Greg’s practice are: understanding the client’s business; frequent and consistent communication and collaboration; tailoring legal strategy to client objectives; and principled representation meeting the highest standards of professionalism.

Photo of Frank Citera Frank Citera

Francis A. “Frank” Citera is a nationally-recognized trial lawyer representing clients in product liability, toxic torts, class actions and other complex litigation matters in federal and state courts. Frank has over 35 years of experience and is co-chair of the firm’s Product Liability

Francis A. “Frank” Citera is a nationally-recognized trial lawyer representing clients in product liability, toxic torts, class actions and other complex litigation matters in federal and state courts. Frank has over 35 years of experience and is co-chair of the firm’s Product Liability and Mass Torts Litigation Practice and co-chairs the Chicago Litigation Practice. An experienced architect of litigation strategies, Frank defends companies in various industries and business sectors including retailers such as Albertson’s, Claire’s Stores, Inc., Sears, and Whole Foods to technology and electronics companies like Qualcomm, Sony Electronics, and Underwriters Laboratories. He has achieved success in defeating class certification, disputing alleged claims in court, and obtaining summary judgments and outright dismissals prior to trial.

Ranked in Chambers USA for Product Liability: Consumer Class Actions (Band 2), Frank handles multi-state consumer class actions and often serves as national coordinating counsel for companies facing multidistrict and overlapping class action proceedings. He advises clients on risk management, crisis management and communications, and product safety matters and has appeared before federal and state agencies such as the Consumer Product Safety Commission, the National Highway Traffic Safety Administration, the Food and Drug Administration, and the National Transportation Safety Board. Frank has been recognized by Chambers USA and Leading Lawyers Network, and The Legal 500 United States describes him as being “highly experienced and capable” and “renowned for his toxic tort and product liability work.”