What Litigators Know and You Should Know about TCPA Lawsuits and Cases
For most business owners, the sheer volume of the number of cases that are litigated because of the Telephone Consumer Protection Act (TCPA) makes it impossible to keep track of the decisions. More importantly, it leaves many business owners floundering for answers when it comes to making critical decisions about how to use phone, fax and text-based outreach. This gigantic hole in the existing common law has led to a vast array of suits, settlements, and even judgments against unsuspecting businesses. The rise in TCPA lawsuits is enough to worry any business owner – and should be.
Unfortunately, the courts are inundated with complaints and petitions by parties who, more and more often, are professional litigants looking to catch unsuspecting companies and sue them with the hopes of a settlement. There are no shortage of lawyers who are looking for an easy score and understand that from a business perspective, especially a smaller or mid sized business, the rapidly changing landscape is treacherous and often leads to costly mistakes. Lawyers on the other hand are very focused on case law in the area of TCPA because it sets the stage or other lawsuits and potentially big pay days. As a result, business have to either hire their own counsel or be very aware of the changes in the way the common law is interpreting the TCPA. Here are a few things to note –
#1 The Third Circuit dismissed a case based on sending a fax
The Third Circuit recently upheld the dismissal of a TCPA fax claim because they found that the fax was not an advertisement. The court gave a very clear signal when it stated, “ a recipient’s outside knowledge that a sender sells something does not transform every fax sent by such sender to a recipient with such knowledge into an advertisement.” Mauthe v. National Imaging Associates. This ruling draws the distinction between knowing that a business sells something and the business actually soliciting a sale.
#2 The courts may not certify a class action, but people can still sue your company in an individual lawsuit
Class certification is not certain, despite what lawyers like to say about the TCPA. Recently four different courts have refused to certify a class action in TCPA cases. On the other hand, four other courts recently did certify TCPA class actions. For lawyers paying attention to these cases, for the relevant case law, they will be able to parse through the minute differences and quickly find a pattern to help them get more cases certified as class actions. It is important for businesses to be aware of these distinctions as well.
#3 This may go before the Supreme Court
One of the most interesting cases is American Association of Political Consultants, Inc. v. Federal Communications Commission, where the Fourth Circuit found that the TCPA’s federal debt exemption is unconstitutional because it violates the First Amendment. The developments in this case set the stage for even better case law if it makes it to the Supreme Court of the United States. Currently there is another case being litigated in the Ninth Circuit, (Gallion v. Charter Communications) and it will be interesting to see how the Ninth Circuit interprets the federal debt exemption. If they find that it is constitutional, this will almost certainly require the Supreme Court to step in and play referee.
TCPA law can be complex but litigators are looking for cases
Knowing the law is important, even when it can change as rapidly as case law often does. TCPA is a hot area where lots of plaintiffs are looking for an easy buck, assisted by lawyers who revel in this kind of dissonance. Being aware, being informed, and being careful are the best way to avoid getting hauled into court where you may or may not know exactly what the case law is.
Protecting yourself is getting easier if you know where to start
Fortunately, protecting yourself is easier than it may seem. It all starts with the right lead list. You need a lead list where every number has been scrubbed against the DNC Registry (even business numbers). Then, you need a policy that requires all employees to scrub new numbers against the DNC (even if a prospect gives them that number).