For anyone who still refuses to take the TCPA and its potential exposure seriously… its time to (finally) pay attention.
The TCPA is the single biggest legal risk facing most organizations–and any company that makes large volumes of outbound calls faces existential TCPA risk on a daily basis.
And the most dangerous case of all is the wrong number TCPA class action. As I explained at the big Florida TCPA Summit in December, wrong number TCPA class actions are the single biggest risk facing most businesses. Period.
Not marketplace competition. Not the tight employment market. Not inflation. Not supply chain issues.
Wrong number TCPA class actions.
That’s your biggest risk.
Don’t believe me?
There is a major bank out there that can tell you all about it.
In Head, No. CV-18-08189-PCT-ROS, 2022 U.S. Dist. LEXIS 16179 (D. Az. January 27, 2022) the (nameless for now) bank suffered what is likely the second biggest TCPA certification ruling in history. (Only the Cordoba certification order likely impacted more people.)
According to the record, well over a million people are in the Head class–each of whom likely received more than one potentially violative call. And each of those calls–being to a non-customer–was likely made without consent, as the Court found. At $500.00 per call, the present exposure facing the bank is, in all likelihood, north of a billion dollars or so.
North of a billion dollars.
Maybe way North.
I ask you, what other business risks does a Bank face that can swing the needle on its net worth–I’m not talking market cap, I’m talking net worth– by over a billion dollars at the drop of a hat (or a gavel)?
Sure I can break down the case. Explain how the Defendant focused on data issues that the Court found were not germane. How they argued the Plaintiff failed to identify the class–even though class members don’t need to be identified at the certification stage–and failed to combat the class notice paradigm. But we’ve seen this exact movie before–with the same firms involved. (Yes this was Greenwald Davidson Radbil PLLC at it again. Those guys never seem to lose–unless its to me. ;))
Head was a little different– a little less predictable–because the Bank had successfully defeated certification in TCPA suits twice before. So I don’t fault them for taking a shot here. But those cases had different class definitions. And were brought by different lawyers. Using different theories. So adjustments had to be made in the defense.
And those adjustments, apparently, weren’t made or–at least–fell short.
So now the Bank must answer for every wrong number prerecorded call it made over the last seven years to collect on consumer credit card debt.
Here’s the class definition that has been certified:
All persons and entities throughout the United States (1) to whom [Bank] placed a call in connection with a past-due credit card account, (2) directed to a number assigned to a cellular telephone service, but not assigned to a current or former [Bank] customer or authorized user, (3) via its Aspect dialer and with an artificial or prerecorded voice, (4) from August 15, 2014 through the date of class certification.
Notice folks, this is NOT a marketing case. This was a collection case. Calls made to Bank customers who had either supplied wrong numbers or–in all likelihood–to numbers that had been recycled with customers giving up their phone numbers and new individuals taking up their place. (For anyone questioning the value of the using the reassigned number database–stop questioning.)
Notice also that the Bank did nothing morally wrong here. It didn’t cheat anybody. It didn’t take advantage of anybody. It was calling to collect money it was properly owed. It was calling numbers that its customers gave it. But the TCPA doesn’t care. The TCPA isn’t about right or wrong. Its about black and white. Either you made a call with the proper consent, or you didn’t. Period.
Notice also how Facebook didn’t save the Bank. The use of a prerecorded call dooms it, no matter whether Aspect is an ATDS or not (and it likely isn’t.) If anything, Facebook hurt Bank-the stay the bank requested pending the outcome of the Supreme Court’s decision only elongated the class period, increasing the number of at issue calls it must now answer for.
But ultimately an analysis of the case–a breakdown of the Court’s take on Rule 23 factors, how Plaintiff overcame arbitration issues and ascertainability arguments, discussing the missteps that lead it here etc.–is unsuitable for this blog. Because this isn’t a story about a single case.
The ruling in Head transcends legal analysis. It transcends the crippling 10 (11?) figure exposure the Bank now faces.
It is a cautionary tale that affords a chance for an awakening. For epiphanies far and wide. It is time for those still sleeping to wake up to the truth of what the Czar has been telling everyone for years:
There is NOTHING more dangerous than the TCPA.
There is a reason why I have dedicated my career to defending companies–including major banks and finance companies who are not the subject of this story– from this statute. There is a reason I have thousands of followers, over a hundred clients, and have successfully defended thousands of cases.
And it ain’t because I’m cheap.
There is a reason some consider my team to be the best class action defense lawyers on Earth.
Because we know how dangerous this statute is. And we take every filing. Every discovery demand. Every moment lived within the confines of handling this litigation deadly seriously.
You should too.
There’s no other way to survive and succeed in these woods for as long as we have.
Not for the faint of heart or the green of horn, and all that.
So anyhoo, here are your take aways:
- The TCPA remains the most dangerous law on the books and TCPA litigation should be of the highest priority for companies and their counsel;
- Call me when you are facing a certification fight. I will help you. Many times I will do it for free. Don’t be prideful. I am literally the most experienced TCPA defense lawyer on the planet. And I am willing to help. Take me up on that.
- TCPA wrong number class cases remain the most dangerous of all TCPA cases. Nothing new there.
- Arbitration provisions won’t prevent these sorts of suits.
- Review your data and processes concerning wrong number calls. Right now.
- Use the Reassigned Number Database. It exists for a reason.
Always happy to chat. (Even though my phone has already been ringing off the hook today.)
Also, I wonder if I will be discussing this case at the Consumer BANKER’S Association conference in March–CBA Live. hmmm.
There were two banks sued on January 27th. First National Bank of Omaha and Bank of America. I am assuming you are talking about Rubio v Bank of America. There is Croft v. PNC Bank, National Association.
Nope. Those are filings. This was a certification ruling.
The plaintiff alleges that the bank robocalled her cell phone more than 100 times in only three months(!!) regarding someone else’s account. The first 100 calls obviously didn’t result in any progress toward the bill being paid. Did the bank think that the 101st would be any different? This is harassment, not communication. Facts like this do not inspire sympathy for a defendant.
Just curious… why won’t you name the bank Eric? Anyone can look up the case since you so nicely provided the case number, JS.