TCPAWorld After Dark: Court Holds No EBR Defense Available in the Absence of Internal DNC Policy

So it has been an incredibly busy week for me TCPAWorld. I apologize for the rather sparse content. I promise to do better next week. 🙂 was absolutely splendid, but it was also fairly all encompassing. I just have too many friends these days (although I love all of you.) And I can’t step off a stage these days without picking up 4-5 new clients is seems (again, love all of you) so…there’s just been a lot to get through.

Anyway there were a trio of AWESOME ATDS decisions this week and I will cover all of them tomorrow AM. But for my bleary-eyed night dwellers I have something pretty interesting.

A court in Ohio held this week that a caller cannot rely on the old established business relationship defense to a TCPA DNC claim unless it has an internal DNC policy.

Now this is weird because the statute doesn’t say anything remotely close. Yes, a caller making marketing calls must have an internal DNC list–and there is likely a private right of action to enforce the regulation’s requirement that a written policy exist respecting the maintenance of such a list–but the statute’s EBR exception lives entirely outside of that subsection of the CFR. So I have no idea how the Court merged the two.

The case is Laguardia, Case No. 2:20-cv-2311, 2021 U.S. Dist. LEXIS 170704 (S.D. Oh.  September 9, 2021) and is really weird on the DNC piece. But it also has an OUTSTANDING ATDS analysis…which I will cover tomorrow.

So keep this in mind TCPAWorld–if you don’t have a written policy respecting marketing calls some courts will find you lack an EBR defense…for some reason.


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