KNOWING OR RECKLESS: Court Clarifies TCPA’s Treble Damage Standard in the Context of Faxes

Well yesterday was a ton of fun and an odd self-indulgence. But now it back to work.

Quick one for you for a Friday a.m. TCPAWorld, there is still a somewhat-ongoing debate as to the willfulness standard under the TCPA. As most folks know, the statute allows for treble damages where a TCPA violation occurs “knowingly or willfully” but what must a caller know or will to trigger the heightened damages?

The Plaintiff’s bar often argues that a caller need know or will solely that a call or fax is being made. The Defense bar, on the other hand, argues that only knowing or willing a violation of the TCPA triggers the statute.

So which side is right?

Well, according to the majority rule, neither, as True Health Chriopractic, Inc. v. McKesson Corp., 2022 WL 1239346 (N.D. Cal. April 27, 2022 shows.

In True Health the Court rejected the Plaintiff’s argument that merely being aware a fax is being sent can qualify a defendant for the ole treble damage treatment. That–in the court’s view–would render ever caller subject to punitive damages.

Instead, the court held “a plaintiff must show that a defendant knew or was reckless in not knowing that it was engaging in the conduct that violates the statute.”

In the context of sending a fax: “[i]t is not enough for a plaintiff to show that the defendant knew it was sending a fax. Instead, a plaintiff must show that the defendant knew or was reckless in not knowing that it was sending advertisements to a telephone facsimile machine and that the recipient had not given prior express consent.”

In the context of calls and texts this rule means a Defendant is not liable for treble damages unless it knew or was “reckless in not knowing” that it lacked consent to call or text a consumer.

I should note that in a TCPA class action the potential for treble damages is usually less an issue from a damages perspective–I mean $500.00 per is already sufficiently high to cripple most businesses when aggregated over millions of calls– and more of a problem in terms of the discovery it enables. Under the guise of “proving willfulness” a plaintiff may seek huge volumes of correspondence between agents, employees, and even with third-party vendors hunting for the slightest hint of “knowledge” that illegal calls were being made.

Just another fun twist here in TCPAWorld. We’ll keep an eye on the willfulness standard, as with everything else around here.


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