Well folks, every year I take a moment and reflect on all the GREAT things that are happening here in TCPAWorld and give THANKS (and encourage you all to do the same.)
TCPAWorld is a rough and tumble place. But despite all the harshness and seemingly unforgiving terrain here in TCPAWorld there is still much to be Thankful for. So pour yourself a glass of Aunt May’s Sparkling Autumn Sangria and enjoy!
10. Ninth Circuit Holds Aggregated TCPA Damages Might be Unconstitutional:
Starting off our list of TCPAWorld stories to be thankful for in 2022, the Ninth Circuit’s newest ruling holding that the TCPA’s statutory damages might be unconstitutional when considered in the aggregate. While this is a GREAT development it remains to be seen how much practical effect the ruling will have pre-judgment. (But I have some ideas.)
9. Courts Have Concluded Two State Mini-TCPAs Do Not Apply To Text Messages!
As we have said repeatedly, text messages are your safest channel at the federal level.
While texts remains very dangerous in Washington, Florida and Oklahoma courts in both Texas and Alabama have held that text messages simply do not trigger their state mini-TCPAs. And for folks leveraging SMS to connect with their customers and near customers that is truly something to be thankful for. See UNDERWOOD v. IFA HOLDINGS, LLC, 2022 WL 2307738 (N.D. Ala. June 27, 2022)(Only calls and not texts can be solicitations under Alabama’s Telephone Solicitations Act); Powers v. One Technologies, Civil Action No. 3:21-CV-2091 (N.D. Tex. July 28, 2022)(Registration requirements only apply to marketers making phone calls—not text messages.)
8. Contracts Still Matter!–Some Courts Will Award Judgment to a Seller Based on Contract Terms With a Marketer
Liability in TCPAWorld sometimes feels like it turns on the whims of a judge–or the quality of defense counsel–but at least some courts will still treat contract terms as meaningful. Some will even outright dismiss a case where a caller violates the terms of their agreement with a product seller. And in a (TCPA)world where so many sellers rely on marketers to create leads, this news is sweeter than that double molasses cranberry sauce.
7. Webforms Are Still Enforceable–Maybe TOO Enforceable
So in the first of “this is great news but could also be a trap” stories making this year’s list is Beard v. John Hiester Chevrolet, 2022 WL 16840332 (E.D. N.C. Nov. 9, 2022). What a remarkable little case. The Court held squarely that conspicuous standalone TCPA disclosures are not required where a Plaintiff accepts a regular “terms and conditions” provision that includes the required CFR language buried within the fine print. This flies in the face of everything we know here in the TCPAWorld–the Troutman Nine is critical–yet it is a wonderful little ruling for those who find themselves in dire express consent straights. While we should all be thankful that a court MIGHT bail out others, I wouldn’t serve any gravy out of this leaky boat.
6. Speaking of Webforms… QuinStreet Delivered a Huge (Industry-Saving?) Win
After the Berman disaster–we will not speak of this case in our GRATITUTE post–things were looking mighty bleak for performance marketers and those who relied on webforms to obtain consent. But Quinstreet stepped to the plate and delivered a massive win showing that Berman is more limited than the Plaintiff’s bar believed. And that’s a story that provides more relief than a roll of Tums following that third helping of bacon-wrapped figs. See Pizarro v. QuinStreet, Inc., No. 22-CV-02803-MMC, 2022 WL 3357838 (N.D. Cal. Aug. 15, 2022) (Quinn Street wins motion to compel enforcing disclosure that was below the button. Court deemed disclosure conspicuous enough.)
5. Standing Issues Are Turning into Great Class Action KILLERS–Just Like I Said they Would
Nothing better than defeating a class certification motion. High fives, and champagne bottles and kazoos. Well the Court in Barnes gave TCPAWorld defendants another great path to defeating certification by leveraging the fact that not every recipient of a voicemail is going to have actionable harm. Yes, the Czar was right–Article III standing limits really are the best path to defeating certification in TCPAWorld these days. And that’s as satisfying as any warm stuffing.
4. R.E.A.C.H. is REALITY!
I know its not a TCPA story, but arguably the most important development across all of telecom law–other than the creation of Troutman Firm, of course–is the creation of Responsible Enterprises Against Consumer Harassment (R.E.A.C.H.). Designed principally to assure that lead buyers can act jointly in setting standards and best practices in the direct-to-consumer marketing industry, the ultimate goal of R.E.A.C.H. is to make it safe for Americans to answer their phones again, drive up contact rates, push back on the carriers and their black box (out of control) call blocking and restore balance to the TCPAWorld as a whole. Now THAT’S something to be grateful for! We are still looking for board members between now and December 1, 2022. So apply now!~
3. Stoops Was Revived To Shut Down A Recent Manufactured Lawsuit
Manufactured lawsuits continue to be a major problem out there. Before R.E.A.C.H., the Czar’s greatest gift to TCPAWorld was his huge win in the Stoops case, which threw out a manufactured lawsuit for the first time and taught TCPAWorld how to defend these suits. While most defendants have failed to walk in he Czar’s footsteps, the IUPA recently succeeded by doing precisely what the Czar did back in Stoops. And having big Czar footsteps to follow in is DEFINITELY something everyone in TCPAWorld should be thankful for. (And I am thankful for you all as well of course!)
HONORABLE MENTION: The Ninth Circuit Blows Up the TCPA’s ATDS Definition Again
When Borden first came out last week I thought, for sure, it was going to be a major “thankful” sort of story. After all the Ninth Circuit Court of Appeals held that TCPA ATDS suits are essentially dead–the TCPA only applies to random-dialed phone numbers. The problem, of course, is that the Ninth Circuit’s re-write of the TCPA is actually inconsistent with Facebook. So this seemingly great ruling may actually just be a mirage–or, worse yet, a TRAP! So while we are grateful for the seemingly positive shift in the law, we have to be very cautious here. It may not last!
2. Court Holds Only People Who Personally List Numbers on DNC Have Standing to Bring DNC Claims–And That’s Huge!
Post-Facebook, the Plaintiff’s bar has largely focused on bringing prerecorded call cases and suits regarding violations of the TCPA’s DNC rules. While DNC cases continue to be dangerous, a ruling from Iowa earlier this year may have made it MUCH MUCH harder to sustain a TCPA DNC class action. Specifically, the Court held that only individuals who actually listed their number on the DNC list PERSONALLY can bring suit under the TCPA. While the class representative can allege they did so, it is often IMPOSSIBLE to know which class members did, or did not, personally list their numbers on the DNC lit. Hence there is no way to ascertain class members who have standing to sue and class certification should be denied! A ruling neutralizing class actions in HALF of TCPA cases? Now THAT’S an amazing Thanksgiving miracle.
- TCPA Cases Can Be Thrown Out Faster than Ever Before!: Court Holds Calls Not “Fairly Traceable” to Seller That Didn’t Authorize the Calls–And You’re Welcome
Naturally the biggest TCPA WIN of the year, so far, was brought to you By Troutman Firm. In Bacarri v. CarGuard, Troutman Firm used a never before used trick to extract a Defendant from a TCPA suit. Leveraging a little used provision of the Article III standing rules, we were able to have a Defendant removed from the case AT THE PLEADINGS STAGE relying on contracts that would otherwise not have been admissibe until much later in the case. This is definitely an ENORMOUS win that opens up similar quick wins for TCPA defendants across the country. And it was against the Wolf!–making it sweeter than a country-style Cherpumple.
Well that’s your Thanksgiving TCPA feast for the year. As always folks I am SO grateful for all of your love and support. Especially this year. The Troutman Firm is doing SO well and that is ONLY because of you. To all my clients out there reading this, just know that I am so humbled to be your chosen counsel–and so honored. I am so grateful and will never stop working hard for you.
I truly truly am the luckiest (and happiest) guy in the world. THANK YOU to everyone out there. So grateful to you all and I wish you all the happiest Thanksgiving imaginable!