DNC DOCTRINE: Termination of Contract Does Not Terminate TCPA’s EBR Says Court

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Pretty quick ruling for you folks.

Plaintiff had an insurance contract with the Defendant. Plaintiff cancelled the policy. Defendant added Plaintiff’s number to a winback campaign and tried to bring him back into the fold.

Plaintiff sued arguing that the termination of the policy also constituted a termination of the EBR. That is, Plaintiff argued that the formal termination of the policy necessarily cut off the EBR and neutralized the presumed 18 month run off period afforded by the CFR.

The Court disagreed. Concluding that the DNC’s EBR rules are clear, the Court found that the termination of the policy did not destroy the EBR defense. Instead the Plaintiff would have had to clearly ask for calls to stop in order for the EBR to evaporate.

The case is Rowan v. US Dealer Services, 2022 WL 2803103, Civ. No. 21-09945 (KM)(LDW)
(D. N.J. 07/18/2022).

Rowan is a great little case that continues the trend of cases holding that “implied” revocation is not effective in the TCPAWorld. Most of the time “implied” revocation looks at consent, however. Rowan applies the same doctrine to the DNC’s EBR defense, which is pretty nice to see.

Bottom line, the termination of a business relationship is not the termination of the EBR defense. You have 18 months from the date of the last transaction to try to win back your customers under the federal DNC rules–just remember to do it manually (and watch out for states like Florida that lack an EBR defense)!

Chat soon

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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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