LITIGATION AFTER DEATH: Does TCPA Claim Survive Death of Plaintiff? District Court in Florida Holds “Yes.”

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Does a TCPA claim die along with a call recipient?

For a while there this was an issue I was seeing with some frequency and the courts were struggling with it quite a bit.

Under the federal common law whether a claim survives turns on whether the statute is penal or remedial in nature (which is weird if you think about it.)

Some early courts looking at the issue determined the TCPA was penal in nature. And this makes sense since the $500.00 per call minimum statutory damage is VASTLY detached from any actual harm to be occasioned by a phone call. So early cases refused to permit TCPA claims to survive the death of a claimant.

TCPAWorld After Death: Certified TCPA Class Action Lives On Despite Passing of Class Representative

But more recent cases have swung the other way, as the decision in Settle v. PHBC Marketing 2024 WL 3638007 (M.D. Fl. Aug. 1, 2023) demonstrates.

In Settle Plaintiff alleged PHBC used an automatic telephone dialing system to call Bruce Settle two times on May 11, 2023, and May 12, 2023, without his consent. And that lead to a lawsuit.

Bruce apparently died and someone named Laurie stepped in to sue in his stead prompting PHBC to move to dismiss because dead people can’t sue, and neither should their widows. (They probably said it nicer than that.)

The Court walked through the case law and decided the TCPA was remedial in nature and let the claim survive. Its findings are questionable, however:

The Court agrees with the weight of authority finds that the TCPA is primarily remedial in nature, as (1) the statute redresses harm to individuals more than harm to the general public, (2) recovery under the statute runs to individuals, and (3) the remedies are not disproportionate to the harms. As a result, Plaintiff’s TCPA claim did not extinguish upon Mr. Settle’s death

While I agree with 1 and 2, finding 3 is plainly wrong. The remedies are vastly disproportionate to the harm in most instances– a phone call simply does not cause $500.00 in damage, even with our hyper-deflated currency these days.

The Court also refused to deemed Laurie an inadequate class member at the pleadings stage reasoning it was too early in the case to make that decision.

So another interesting result here. Again I highly doubt the TCPA is remedial in nature but that seems to be conclusion courts have come to lately–and that means death doesn’t stop a TCPA claim. Keep it in mind.

For other important TCPA issues to keep top of mind be sure to request a copy of the Troutman Amin, LLP 2024 TCPA Year End Review, presented by Contact Center Compliance. 

SEVENTH DAY OF CZARMAS!: IT’S HERE IT’S HERE IT’S FINALLY HERE!!!!–2024 Troutman Amin, LLP TCPA Review, presented by Contact Center Compliance is AVAILABLE NOW (FREE!)

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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.

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