One of the most challenging aspects of defending a TCPA class action is dealing with overly broad and abusive discovery demands.
The Plaintiffs lawyers in this space know that they can use discovery as a weapon to make litigation extremely expensive and burdensome for the defense. This is one of the primary ways they drive parties to the settlement table.
So I always love it when a defendant pushes back–even if just a smidge–on discovery demands and gets a nice ruling from the court.
For instance in Jackson v. Clear Link, 2023 WL 6436692 (M.D. Pa. Sept. 29, 2023) a court denied a Plaintiff’s motion to compel settlement records in previous TCPA cases and “due diligence” reviews attendant Defendant’s decision to retain DMS as their lead supplier.
The demand for settlement agreements is just obnoxious in my view. The terms of previous settlements are almost always confidential and there is ZERO basis to seek such an agreement in a future TCPA case. Indeed, just because a case was brought and settled has no bearing on whether it had merit. And future cases cannot be won or loss based on matters claimed–but never proven–in other cases. Really glad to see the court shut down this request.
But the second piece represents a nice win as well. The level of “due diligence” used by a caller in assessing a vendor is irrelevant to the merits of a TCPA claim. Now, make no mistake, it is VERY important that a caller do diligence before hiring a lead supplier or marketer but NOT because it offers a defense to a claim–quite the opposite. There is likely no defense whatsoever as the TCPA is a strict liability statute in many regards. So doing diligence on a vendor is a critical way to PROTECT YOURSELF from lawsuits the vendor may create that you will be stuck with.
But in terms of a lawsuit, whether a company did or did not conduct due diligence is irrelevant. The party is either liable for an illegal act or it is not and the amount of diligence done does not factor into the equation.
The Court in Jackson didn’t fully agree with my line of reasoning–even though I am quite right–but it did find that on balance the need for further information was not justified given the limited relevance to the case.
Jackson is a great win and a case TCPA defendants really need to keep in mind.
For a breakdown of HUNDREDS of additional cases that TCPA practitioners and parties need to know about be sure to request our FREE 2023 TCPA Annual Review, presented by TrustedForm!