Par for the Course: Court Allows Treble Damages Claim to Proceed in Overruling All of TCPA Defendant’s Arguments

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A good motion to dismiss can end a case outright. Many Defendants, however, seem to bring motions that really have no chance in TCPA suits.

Here’s a quick example.

In Rose v. New Tsi Holdings, Inc., 21-CV-5519 (JPO), 2022 U.S. Dist. LEXIS 56525 (SDNY March 28, 2022) the Plaintiff alleged Defendant’s business was being promoted via prerecorded calls to his cell phone. The phone was allegedly used for personal purposes and was on the DNC. The calls were allegedly made without consent and continued after a do not call request was made reading STOP CALLING AND TEXTING ME and including the number at issue.

Despite these rather clear cut allegations the Defendant moved to dismiss. The Court had little trouble denying the motion finding that the use of a prerecorded call to contact a cell phone without consent violates the TCPA. And calls to a residential number on the DNC list without consent also violate the statute.  The Plaintiff’s allegations were sufficient to state a claim.

The only piece of the motion that had a chance was the portion challenging the treble damages request. But since the Plaintiff alleged he had directly asked for calls to stop–which request was ignored–the Court found that the Defendant could be liable for enhanced damages under the TCPA’s willfulness standard.

Not really many surprises here. So the TCPAWorld goes…

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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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