Audio version here:
During the peak of the TCPA lawsuit epidemic I would see 15-20 cases filed a day.
Between AAPC and Facebook that number dropped a ton–some days we’d see zero filings. Most often it was between 2 and 5.
Well guess what folks? We’re back up to 15 filings a day this week.
So buckle up.
I wrote about the “next wave” on Monday, but let me give you another example.
A guy in Florida is suing a solar company for DNC violations. The complaint alleges numerous calls to his phone number–which is on the DNC–without consent. In the old days this would have been an ATDS claim. But since Facebook the claim is simply pleaded as a DNC case.
Moreover the case also adds the always-dangerous internal-DNC class action. Those of you who have read my 2020 Year End Review know that those claims are on the rise. You must have an internal DNC list if you’re making marketing calls. AND written policies. AND training. Yes, even if you are not using an ATDS. Yes, even if you’re scrubbing the NDNC list. Yes, some courts authorize a private right of action in this context (even though they shouldn’t.)
This is dangerous stuff.
The Complaint is here: Kapinos complaint
Now nation DNC claims are slightly less dangerous than ATDS claims because: i) you have to call twice in a 12 month period to trigger a claim; and ii) the statutory recovery is up to $500.00 per call, not a mandatory $500.00. Plus you always have the argument that the phones were used for business purposes. (No such defenses/limitations exist for pre-recorded marketing calls, however.)
But still, these claims are dangerous and–in case anyone has forgotten–the Fourth Circuit Court of Appeals has deemed them a “model of clarity” that are ready-made for certification. So BE CAREFUL!
Also big news coming later today. So check back in around 4 pm eastern.