July 5, 2020

Volume X, Number 187

July 03, 2020

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Another TCPA Set Up?: Court Rejects TCPA Claim Where Plaintiff’s Counsel Knowingly Sent Revocation Letter to Improper Address

We here at TCPAWorld have seen a number of varieties of trumped up TCPA lawsuits. Perhaps the most audacious (alleged) scheme what that of Lohman’s office that (allegedly) convinced borrowers to stop paying on loans and then scripted carefully-worded (and vague) revocation language for consumers to use to create lawsuits.That could be a RICO violation folks.

But Lohman’s (alleged) conduct is by no means the end of the road when it comes to inventing TCPA claims. Another very common technique is sending a well-worded revocation letter to an address the Plaintiff’s lawyer chooses as a technically valid address for a Defendant but not one where the Defendant would ordinarily accept consumer correspondence. Think—a local branch office of a major bank, or a local franchise location of a nationwide pizza chain.

The lawyer in these scenarios knows well that the business is unlikely to timely process the revocation request sent to the far-flung field address; indeed he/she is counting on it. With the letter (hopefully) misplaced and unheeded by the soon-to-be defendant, the lawyer can wait for the would-be Plaintiff to receive a high-volume of calls and then file suit to collect for every call made after the letter should have been received. That just leaves the final step: laughing their way to the bank following the inevitable TCPA settlement.

Well that appears to be what happened in the recent decision of  Wright v. Usaa Sav. Bank, No. 2:19-cv-00591 WBS CKD2020 U.S. Dist. LEXIS 90576 (E.D. Cal. May 22, 2020) except that the Hon. William B. Shubb simply wasn’t having it.

In Wright the Plaintiff sent his revocation letter to a physical address for Defendant that received only six pieces of mail a month—hardly a processing center. By contrast the communications address that the Defendant listed on statements and held out to consumers and the proper location to submit requests dutifully handles over 1.8MM pieces of mail a month. Factoring in that the physical location the revocation letter was sent to did not even have a receptionist and had no more than five or six employees, the Court concluded the Plaintiff’s lawyer was simply trolling for a lawsuit by selecting the oddball address to send the revocation letter to.

The Court was rather express in its determination that Plaintiff’s counsel may have been up to no good here:

it clearly appears that the choice to send the letter to Las Vegas arose not from a genuine expectation that defendants would process Las Vegas correspondence, but rather from an attempt by counsel simply to create a record for litigation.

Eesh.

Wright is not all good news for Defendants, however. For reasons I cannot fathom, the defense improvidently argued that the Aspect predictive dialer system is not an ATDS. Given that Wright was venued within the Ninth Circuit there was literally a zero percent chance this argument would fly. Nonetheless, the Court was gentle enough in rejecting the defense position: “This court is bound by Marks. Defendants’ proposition to the contrary is unpersuasive.”  All’s well that ends well, but that’s the sort of argument that can really draw a court’s ire. Be careful.

At bottom Wright is a great case looking at the limits of the “reasonable means” by which consumers can revoke their consent. Where there is a clear and obvious way to communicate with a business but a plaintiff’s lawyer chooses an exotic or imaginative address to send a revocation correspondence a court can rightly reject the revocation claim and enter judgment for the defense.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 147

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

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...

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