FRUSTRATING!: TCPA Defendant Stuck in Class Action Despite No Record of Making Prerecorded Calls

4 Comments

The deck can really be stacked against TCPA defendants in class litigation. Even in  seemingly straightforward cases.

For instance in Suarez v. Portfolio Recovery Associates, 2025 WL 1191119 (April 8, 2025) the Plaintiff brought suit over unwanted collection calls.

Usually these cases don’t get very far anymore because courts hold debt collectors do not use an ATDS and, in this case at least, the Defendant had no record of using any prerecorded or artificial voice calling.

So, no marketing. No ATDS. No prerecorded or artificial voice calls.

Seems like a winner for the defense right?

Well, wrong.

The Plaintiff claimed she received prerecorded calls. And despite the fact she had no evidence to that effect– no call recordings, etc.–and despite the fact the defendant had no record of such calls either the issue is going to be sent to the jury.

That’s got to be frustrating for the defense here. But unlike in many cases I do not find fault in anything their lawyers did or didn’t do– this is just how the procedural rules work. If a plaintiff is willing to lie and say they received prerecorded calls–even if they didn’t– a judge is going to have a jury figure that out.

We shall see how this all turns out.

And hope to see YOU TONIGHT at the kick off party for the big TCPA summit in D.C.! We are going to do a little party bus tour of the monuments tonight. Shoot me an email if you’d like to join us!

Chat soon.

Discover more from TCPAWorld

Subscribe to get the latest posts sent to your email.

Categories:

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.

4 Comments

  1. As far as this specific case (debt collection vs telemarketing) this may/may not be applicable. However, the 99.9999% of TCPA defendants are telemarketers, and there are record retention requirements that the TSR mandates, and they’re very extensive records at that for 5* years…

    https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-310/section-310.5#p-310.5(a)

    *Just amended from just 2 years on May 16, 2024. Curious how the choices of 2 years and 5 years came about considering the SoL is 4 years…

    Reply

  2. I always find it amazing that TCPA defendants seem to never have records of anything. And, of course, every TCPA defendant has their head buried in the sand like an ostrich when it comes to knowing that their third-party lead generator was blatantly violating TCPA statutes and regulations.

    Reply

  3. The TSR includes proscriptions against credit card laundering. Money laundering carries a 5 year statute of limitations.

    Reply

  4. I see, said the blind man…thank you Sir. I appreciate the info!

    Since you mentioned it, here’s a real fun read regarding CC laundering:
    https://storage.courtlistener.com/recap/gov.uscourts.caed.438272/gov.uscourts.caed.438272.1.0.pdf

    But wait, just what does this have to do with the TCPA you ask?

    Well, when they refer to “…high-risk activities…” and “…sham companies…”
    they mean those CBD/ED gummies texts (usually ‘endorsed’ by Shark Tank, Oprah and even Dr Oz) we’ve all gotten way too many of. Note: the latest iteration is GLP-1 weight loss gummies – sheesh!!

    Here the Feds actually caught one large organization that ran $97 Million from 2020-2023 and that’s just what they’ve identified so far. Heck this would make a great movie!

    Reply

Leave a Reply