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

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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. 🙂

Contact.io 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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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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