So it has been a busy morning for me already–just announced the opening of Troutman Firm’s NEW Miami, Florida office!!! (Wooop!)
But as has been my tradition, every year I stare into the swirling abyss of frightful TCPA tales to deliver the TOP 10 most devious and horrifying TCPA stories to chill your blood this Halloween.
I must warn you, this blog is not for the faint of heart. It is for those of a robust composition, capable of facing the most TERRIFYING litigation tales imaginable. Tales of MASSIVE exposure–even PERSONAL liability–over trifling or accidental misconduct.
Here you will hear stories where the penalty NEVER fits the crime and the baby is ALWAYS thrown out with the bathwater.
Here your rights will be stripped away, your voice silenced, and your relationship with your customers trampled upon–all in the name of stopping robocalls!
And when you reach out for help, you will find the judiciary has been largely converted into ZOMBIES– mindlessly hammering defendants in TCPA suits because “Robocalls bad, plaintiff’s lawyers good.”
In seriousness, however, I’m in a bit of a Poe-sian disposition this morning so this is the GORIEST and DARKEST edition yet.
My sentiments exactly creepy-faced pumpkin.
But without further adieu, here you are. The top 10 MOST FRIGHTENING TCPA stories of the year:
10. Allstate Settles One of the Highest-Dollar TCPA Suits in History: At number 10 is a tale of self-inflicted misery. After the Facebook decision many thought the days of large-dollar TCPA settlements were behind us. But they were DEAD wrong. Not only has the highest overall TCPA settlement in history come post-Facebook, one of the highest ever per-class member resolutions was reached by Allstate in Gebka. There Allstate paid $4.5MM to resolve the claims of just 7,451 people. That’s over $600.00 a class member (or about 5-10x market value for this settlement IMO.) And there is NOTHING scarier than overpaying on a TCPA settlement!
9. The National Consumer Law Center Continues to Get Paid: There is a dark force in the TCPAWorld that continues to draw energy from all of its dwellers. The NCLC–the nefarious special interest group famous for advocating for a broad TCPA and convincing Congress and the FCC that legitimate American companies are to blame for the robocall epidemic in this country. The NCLC has turned into the lobbying wing of the Plaintiff’s bar IMO and is constantly looking for ways to create more lawsuits! Yet TCPA defendants are feeding into the beast, metaphorically cutting off chunks of their own flesh (dark!) as a sacrifice by naming the NCLC as cy pres recipients in large-dollar TCPA class actions. Its so awful I even created a meme to stop it!
8. The FCC May Be About to Break Text Message Deliverability Even Further: As call centers know, deliverability rates have been TURNED TO STONE by ruthless and unregulated carrier call blocking. My goodness what a disaster. Yet text message communication has suffered even more. With texts treated as information services, carriers have rolled out the campaign registry for 10DLC to limit communication options. Blocking is rampant and service providers are slowly being hacked to pieces. And things may be getting even worse with the FCC apparently set to roll out a STIR/SHAKEN authentication protocol for text messages similar to that for voice channel communication. ALL of my friends at the carriers tell me this is an awful idea that will drag down deliverability and threaten to break the spine of the American SMS infrastructure altogether. Horrifying!
7. Speaking of NPRMs, the FTC Is Looking to Force You To Slit Your Own Throat By Preserving Evidence of Wrongdoing: I told you this was a gory tale of Halloween misery. The FTC’s recent NPRM requiring telemarketers to hold on to five years of call recordings, calling data and consent records was issued SPECIFICALLY to assure that marketers kept the keys to their own incarceration close at hand. Is it constitutional? Probably not. But it doesn’t matter. You have no rights in TCPAWorld! So record everything you’re up to and be ready to hand it over to the government at a moment’s notice–then, prepare to be shackled and chained for all eternity! *Insert evil laugh here*
Discussing the FTC’s New NPRM. For more GREAT content be sure to follow our INCREDIBLE YouTube Channel.
6. The Berman Nightmare Turns Arbitration Clauses into PHANTOMS: For those relying on online disclosures to obtain binding arbitration provisions prepare to wake up in a cold sweat. Back in April the Ninth Circuit Court of Appeal handed down an extraordinary ruling suggesting that commonly-used webform submissions may actually NOT be binding because a consumer was not sufficient informed they were accepting final and binding terms. This means that forms YOU were using to obtain arbitration–or even consent–may not be enforceable at all! You won’t be sleeping tonight!
Breaking down Berman. For more GREAT content be sure to follow our INCREDIBLE YouTube Channel.
5. The Third Circuit’s Panzarella Decision Means EVERYTHING is an ATDS–But It May Not Matter: Nothing more horrifying than an existential crisis. Do we even exist? Is the universe entirely recursive? Does our quest for meaning even matter in the grandest of schemes? And so it is with the thousand-year (seemingly) history of ATDS jurisprudence. For so long we have litigated and pondered the meaning of the TCPA’s sphynxian riddle–what is an ATDS? Yet the Third Circuit has snatched those years from us and cast them down, determining that it never really mattered anyway. EVERYTHING is an ATDS now per the Third Circuit–yet it does not matter. For only the use of a randomizer to make a phone call triggers the statute. Panzarella is TRULY the abyss. Don’t stare too long…
4. The Specter Of Personal Liability Has Grown Even More Powerful: Every year the story that rattles people most is that of personal liability. The idea that the TCPA can take YOUR personal fortune–your home, your cars, your savings–is something that leads people to madness. Yet, somehow, this year it is even worse. In past years only PERSONAL participation in conduct violating the TCPA could trigger personal liability. Now, however, something called “vicarious personal liability” exists. It makes no sense. It is utter madness. And anyone trying to understand it may end up in a straight jacket in a padded cell. Yet, the risk remains nonetheless, making TCPA compliance more important than ever before.
Discussing “Vicarious Personal Liability.” For more GREAT content be sure to follow our INCREDIBLE YouTube Channel.
3. The Courts Are Giving Litigators Even More Power!: Look on the horizon and you’ll see it– the eerie light of bonfires of the circling camps or Orcs and Raiders. Litigators! The Visigoths of new, litigators are always waiting to raid and sack our homes and businesses. Infiltrating with new techniques and tactics and growing in huge numbers thanks to online forums and YouTube channels. And the courts are stripping away our defenses. Leaving us at the mercy of the rampaging hordes. One court has recently held that feigning interest in products and inviting calls does not strip a litigant of the right to sue and it not fraudulent! And the Ninth Circuit just destroyed prudential standing altogether–meaning the drawbridge is down and the rampaging litigators are free to enter into your systems and cause havoc.
2. State Laws Continue to Proliferate–With One MAJOR LAW Taking Effect tomorrow!–Making TCPA Compliance Harder than Ever Before: Without question, 2022 has been the year of state-law claims. Over a hundred FTSA claims have been filed this year with the courts repeatedly refusing to strike down the law on constitutional grounds. (The fact that the Plaintiff’s bar has effectively benched the Czar by refusing to fight the constitutional battle against my clients is really working to their advantage!) We’ve already seen at least one 7 figure FTSA settlement! And now Michigan and Oklahoma have jumped into the fray with MASSIVE and COMPREHENSIVE bills of their own. And OKLAHOMA’s new law takes effect tomorrow!!!! I have been told some Plaintiff’s lawyers plan to open shops in OK specifically to take advantage of the new bill. And we fully expect other states to jump on board. The shift to state-specific laws is now in full swing and there is NOTHING more terrifying than that. Mercifully, however, Troutman Firm now has state-specific products and services to assist you NATIONWIDE!
Breaking down the new MICHIGAN bill. For more GREAT content be sure to follow our INCREDIBLE YouTube Channel.
And now, the number one story of horror.
Honestly, it wasn’t even close.
1. The Technology You Use to Protect You From TCPA Risk Could Be YOUR BIGGEST Risk of All: This story is so dark, so horrifying, I hesitate to tell it at all. But I must. The Ninth Circuit Court of Appeals has held that web session recording technology–like Active Prospect and Jornaya–constitutes WIRE TAPPING under California’s incredibly PUNITIVE invasion of privacy statute. That means every time you use TrustedForm you may be incurring a penalty of up to $5,000.00! So you use technology to help consumers to avoid a $500.00 TCPA penalty and you end up facing a $5k penalty. What in the world!!??? And what makes it worse–the Ninth Circuit says you can be liable EVEN IF the consumer is RECORDED giving consent to be recorded, because the consent must be obtained BEFORE the recording occurs. That sort of backward talking nonsense is legal HELL of the most diabolical nature. So all of your hard work to comply with the TCPA may actually end up causing even more risk than if you had done nothing at all. Welcome to the darkest pit of despair.
Analyzing solutions to Javier. For more GREAT content be sure to follow our INCREDIBLE YouTube Channel.
I’ll admit, this edition of Halloween Scare tactics has actually made me a bit uneasy. Is that a raven knocking at my door? He’s probably just frightened of all the TCPA madness outside. Only the Czar’s kingdom seems safe. We continue to win big cases where others fall flat.
So I’ll leave you with a happy note– if you’re ever seeking shelter from the raging TCPA tempest, we’re just a phone call away.
Plus we are now open in Florida!
And that should put a smile on your face again!
Happy Halloween folks!