Category: TCPA

Imagine sitting at home and receiving a text message from a restaurant inviting you to view their nightly dinner specials. That’s pretty clearly telemarketing, right? Now, imagine that you first called the restaurant to make a dinner reservation for that evening and also provided your cell phone number. The restaurant then sends you the exact same text message. What result? In a new decision from the Eastern District of California, Judge John A. Mendez held that such text messages are not telemarketing and are expressly permitted by the diner when the diner provides his or her phone number to the restaurant in connection with the dinner reservation.

One of the most annoying inhabitants of TCPA land is the Opt-Out Evader. This fellow or lady tries to set up TCPA lawsuits by texting phrases s/he knows will not be recognized by text service providers. Rather than simply texting “STOP,” the Opt-Out Evader texts, “It would be great if you would no longer text me. Thanks.” And instead of QUIT, s/he might say, “These text messages are really quite excessive so please cut it out.” It is all a scam, of course. Judge Brian Martinontti of the District of New Jersey saw this tactic a mile away and dealt a steely hand of rough justice this week to an Opt-Out Evader in Viggiano v. Kohl’s Dep’t Stores, Inc.

She may be the only judge in the country still actively dismissing TCPA claims for lack of Article III standing following Spokeo, but Judge Cathy Ann Bencivengo demonstrated on Thursday in Selby v. Ocwen Loan Servicing that she is not going to change her views on the subject anytime soon.

In Rodriguez v. Student Assistance Corp.—the first published decision directly following the Second Circuit’s ruling in Reyes v. Lincoln Automotive Financial Services—an E.D.N.Y. judge granted summary judgment in favor of Navient Solutions in a TCPA case, disregarding allegations that the Plaintiff had “repeatedly” asked for automated calls to her cell phone to stop. The Court found that the revocation efforts were absolutely meaningless because the Plaintiff was a member of the Sallie Mae settlement and, by failing to opt out or otherwise submit a written revocation form, was bound to an eternity of debt collection calls from Sallie Mae and its corporate successors by virtue of the settlement agreement’s “class consent” clause.

This year’s TCPA filings are downright ghoulish, although slightly below last year’s count YTD. If that isn’t enough to make you scream, consider that TCPA class actions are still being filed at quadruple the rate seen before the FCC’s 2015 TCPA Omnibus ruling. But the really horrifying statistic this year is the .071 batting average that defendants have mustered on motions to stay TCPA cases pending the outcome of the ACA, Int’l appeal since August of this year.

On September 15, 2017, the parties in Snyder et al. v. Ocwen Loan Servicing LLC sought court approval for a $17,500,000 settlement fund to pay claims related to calls placed to just 1,685,757 unique cell phone numbers. At $10.38/cell phone number called, this class settlement is one of the highest per-cell number figures paid in a mass-resolution TCPA class settlement.

If the TCPA has a “rock bottom,” we may have just hit it. As recently explained by Judge Cynthia Bashant of the Southern District of California: “Roy Tuck and his wife Deborah Tuck, together with their son Richard Caruso and mother-in-law Clarice Tuck, appear to have developed a cottage industry suing their creditors for violations of the TCPA, the FDCPA and the FCRA. In each case, the parties request to proceed [in forma pauperis], listing liabilities that far exceed assets. Curiously, however, despite the fact that they have received settlements from approximately a dozen different defendants, their assets and cash in their bank accounts remained unchanged.”

Sometimes the toughest job a court faces is finding a way to do the right thing. When it comes to the crushing damages afforded by statute for violations of the TCPA, the “right” thing is often to reduce the award to something that loosely resembles the harm caused by the illegal conduct. But does the U.S. Constitution really afford an avenue to reduce damages to a prevailing plaintiff based upon due process or other concerns?

Senators Edward J. Markey (D-Mass.) and Michael S. Lee (R-Utah) are taking yet another stab at invoking the Telephone Consumer Protection Act against federal debt collectors, even though the Federal Communications Commission has made clear that the TCPA does not apply to these entities.

It is a scenario that our clients commonly face: when calling a customer to discuss a specific delinquency on a specific account, the customer says “stop calling me.” But what if the customer has multiple accounts or even debts related to multiple product lines with the caller? Is the caller to cease all effort to contact the customer on all accounts, no matter how diverse and for any reason whatsoever? Or is the caller only required to stop calling regarding this specific delinquency and on this specific account? Or is it something in-between?

Strict scrutiny just isn’t what it used to be. For the third time, a district court has applied strict scrutiny in analyzing the TCPA and found that the statute restricts no more speech than necessary to further a compelling governmental interest.

This is the biggest TCPA news since the Omnibus—a silver bullet to defeat most revocation cases was hiding in plain sight the entire time: a party cannot unilaterally modify the terms of a written contract to suit itself and so cannot revoke consent when the contract gives a business the right to call the number.