Stuck in the States: Canadian Company Trapped in TCPA Suit in California Because the TCPA is Too Whacky for Canada

I love Canada.

True story, I visited not long ago and I went to a sandwich shop ordered a hoagie and they gave me a donut for free.

Gave me a donut. For free.

I mean, come on.

Another thing to like about the Canadians is that they don’t have goofy laws like the TCPA or class action litigation. So if you’re a Canadian company that gets sued in the states you really want to get to your home Court in the Great White North. (That’s all capitalized right?)

Well here in America we have this thing called forum non conveniens –which is basically a doctrine that let’s forum companies litigate cases in their own courts as long as there’s really a remedy there and some other factors are met. It comes out of a case about a helicopter crash in Brazil brought by folks who lived in Brazil against a Bazilian company and decided to sue in America. That didn’t work out.

But that’s a little bit different than a Canadian company being sued in an American court by an American who received calls in America, as was just pointed out in Fabricant v. Elavon, Inc., 2:20-cv-02960-SVW-MAA, 2021 U.S. Dist. LEXIS 80066 (C.D. Cal.  March 8, 2021)

In Fabricant the Defendant sued the Canadian company arguing it violated the TCPA. (Sidenote: the TCPA applies to all companies calling persons in the United States so, yes, foreign national corporations can be liable.) But the Canadian company asked the Court to dismiss the case and allow it to be sued only in Canada on forum non conveniens grounds.

The Fabricant court declined for the most interesting reason—the Court found that the Canadians don’t worship their smartphones the way Americans do and have not allowed a proper remedy for unwanted telemarketing calls. That is, the Court found that Defendant failed to establish Plaintiff would have an adequate remedy in Canada since Canadians don’t have a TCPA-equivalent. And yes there are some common law doctrines in Canada that protect privacy but nothing as meaty and insane as the TCPA’s $500-$1500 statutory damages so—case is stuck in the states.

Bummer, eh?

I know there are a number of Canada-based software platforms that assist American businesses with outreach. Keep this case in mind friends.



1 Comment

  1. I am surprised that no one has gone after Fabricant for entrapment. He does induce calls. You can follow this link below to find that many of the listings are his. Many of these listings are fake too. Fabricant always gets with it. He was the number one TCPA litigator of 2020. He filed 92 cases. Perhaps a $1000 per hour attorney, who graduated from Harvard or Yale, might find something legally wrong with Fabricant’s tactics. Maybe a Federal Judge might declare him vexatious. But probably not in California. That is why every business needs to get a good TCPA phone number suppression service. Protect your business from these legal predators.

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