Who doesn’t love a good scary story for Halloween?
As has long been my tradition, I pause each day on All Hallow’s Eve to reflect on just how truly *horrifying* TCPA litigation can be. So what are the *scariest* TCPA stories of 2019 thus far?
First, although TCPA filings in federal court are down this year–second year in a row for this trend– arbitration filings are spiking, with many consumer lawyers telling more more than half of their suits are filed in arbitration these days. That means *phantom* TCPA suits that do not show up in statistics may now make up the majority of TCPA filings. That also means that the total number of TCPA suits is likely substantially higher than the last two years; the actions are just being pursued in arbitration.
Even scarier– TCPA suits continue to drive a huge volume of class litigation. Other consumer protection statutes–like FCRA and FDCPA– are filed primarily as individual suits with only 5-15% of those cases filed as class actions. On the other hand 35-50% of TCPA suits in federal court are filed as class actions. And recognizing that such actions can yield billions in potential exposure–and hundreds in millions in judgments— the huge volume of such suits is enough to keep anyone up at night.
But then the real *horror* begins. TCPA class litigation follows its own rules, with courts commonly (but improperly) imposing affirmative evidentiary burdens on the Defendant to disprove certain elements of certifiability–even though the Plaintiff has that burden in any other area of law. This has lead to more than one TCPA suit being certified in the most unlikely of circumstances. *Gasp.*
We can dive deeper into this bone-chilling crypt. Do you dare?
Consider– individual officers and agents can be held personally liable for damages in TCPA suits, even for actions taken solely in their corporate capacities. This is a unique rule spinning out of the strange language of the TCPA’s private right of action and can lead to millions of dollars in personal exposure for regular old people who may not have even known the actions their company were taking violated the TCPA. And that personal exposure might not even be dischargable in bankruptcy. *Insert blood curdling scream here.*
And how can they know that the TCPA is being violated? One court has suggested that a fully manual process is, nonetheless, the use of an ATDS because integrates with a dialer system in the cloud. Another court has suggested that manual calls made using a workflow tool that can serve as a dialer are also subject to the TCPA. Indeed, courts still cannot even agree what the TCPA applies to— yet at least one Court has held the TCPA is not void for vagueness even though the statute inhibits free speech in uncertain and shifting ways. That is simply bone chilling.
Need more in this Witch’s Brew? A court recently found that wait queue messages qualify as pre-recorded messages under the TCPA–so a mere request that a called party “hold to be connected to an agent” automatically triggers TCPA coverage. Aww, that’s better than eye of newt. Now, consider that scrubbing for cell phones in your call data can no longer be done with confidence since Neustar’s product was found to be non-dispositive on the issue by the First Circuit Court of Appeal! And we’re still months away from any relief on recycled numbers as the FCC’s reassigned number database–and its limited safeharbor– meaning that you might be strictly liable for unavoidable calls to wrong numbers in the meantime.
Having heart palpations just yet?
And now, the final, terrifying fact: Rather than reigning in the TCPA, Congress plans to double down by making the TCPA the crown jewel of the federal response to robocalls and possibly the most widely enforced federal statute in our nation’s history!
*Sound of thunder crashing, dishes breaking, light bulbs swaying eerily from ceilings on worn cables, cats hissing, and all manner of additional auditory horror movie tropes*
Plus: the CCPA is just a few months away. (Be sure to Catch my big webinar for dnc.com “The Scary Cross-Roads Between the CCPA and the TCPA” on November 20, 2019.) *muhahahahaha*
Enjoy that cold sweat TCPAWorld. Happy Halloween!