LOGIC: You Can’t Sue for a TCPA Violation That Didn’t Cause Harm

3 Comments

So someone told me yesterday we are living in a “post-truth world.”

That kind of freaked me out a little bit.

I am an adherent of Truth–the idea that there is objective truth at all times and in all places and that our responsibility as the only sentiment beings capable of discerning truth is to do precisely that.

Well, the truth is that you can’t file a TCPA claim unless you can assert a logical connection between the asserted misconduct and the harm you are alleged to have suffered.

In Thompson v. Genesco, Inc. 2024 WL 81187, Case No. 4:23-cv-00292-SRC (E.D. Mo.
Jan. 8, 2024) a Plaintiff sued Defendant claiming a failure to abide internal DNC rules lead to unwanted calls by the Plaintiff.

One problem–although the Plaintiff alleged receipt of unwanted calls the Plaintiff did not allege ever placing his name on the Defendant’s internal DNC list. So although the Plaintiff allegedly suffered the harm protected by the TCPA, the claim he asserted did not result in that harm. So the case was dismissed for lack of jurisdiction.

One of the weirdest little cases I have ever seen. Unclear to me why the Plaintiff did not just allege a claim under 227(b) or (c). Perhaps his number was not on the DNC list and the calls were made manually. Not sure what to make of it.

But the take away here for litigators is to remember that whatever the alleged injury is it must actually have been caused by the claim asserted.

And for everyone else, it is a smidgen of hope that truth and logic still exist in our society.

See everyone at LGW shortly…

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Published by Eric "Czar" 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.

3 Comments

  1. What TCPA violation causes such harm that warrants multi million dolllar judgments? What TCPA violation from a small business that causes such harm as to warrant tens of multi thousand dollar judgments? The TCPA Litigator List fights against this abuse everyday.

    Reply

    1. A singular TCPA violation will not result in a multi million dollar judgment; but, dialing out millions of violative calls can. All a small business (or any business) needs to do to avoid a TCPA judgment is to comply with the law. Don’t want to get a speeding ticket? Don’t speed! Like a radar detector in a car, TCPA Litigator List aids and abets those that are breaking the law.

      Reply

    2. The big settlements are for companies that made tens or hundreds of millions of illicit robocalls, and they plead poverty to avoid paying even 1% of the minimum penalty. The aggregate effect of 10 million spam calls is certainly over $1 million: Lost productivity for distractions at work. Safety concerns for drivers, and time and gas wasted pulling off the road to check the phone. Legitimate business calls ignored because it’s probably just the spammer calling again. Etc. And those are just the economic impacts, not the nuisance and aggravation.

      As for the Missouri case that the Czar blogged about, I looked it up. It turns out that there were DNC and autodialer allegations in the original complaint, but the plaintiff later dropped these. I’m guessing this was a strategic move to get it moved back to state court (and it worked), but the Article III issue was raised sua sponte by the judge and opposed by both parties. I don’t know if it was smart for the plaintiff to give up his two strongest claims for this, but maybe the state courthouse has better parking and dining options nearby.

      Reply

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