BREAKING TCPA NEWS: ARE YOU KIDDING ME?–SECOND CIRCUIT COA FOLLOWS MARKS–FINDS ATDS INCLUDES TEXTS SENT FROM LIST

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I just can’t believe it.

In Duran v. La Boom Disco, case no. 19-600-cv, (2nd Cir. 2020)–available here- LaBoom-the Second Circuit Court of Appeals held today that the TCPA’s ATDS definition includes any dialer that can call automatically from a list–following the Ninth Circuit’s approach in Marks. Specifically the Court holds:

we hold that an ATDS may call numbers from stored lists, such as those generated, initially, by humans.

Court determines ExpressText and EZ Texting programs are ATDS as a matter of law.

This decision departs “markedly” from the Eleventh and Seventh Circuit Court of Appeals decisions in Glasser and Gadelhak, respectively.

On human intervention the court holds that clicking a “send” button to initiate a text campaign is not sufficient human intervention to remove a system from ATDS consideration. System still “dials” automatically.

Duran seems certain to embolden additional TCPA suits, just when the Ninth Circuit’s Marks decision-adopting a broad ATDS interpretation- was looking increasingly like an outlier.

Full analysis here.Even more to come.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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