January 18, 2022

Volume XII, Number 18

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January 18, 2022

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Banned from TCPA Litigation For Life?: Court Refuses to Enforce Purported Ban on TCPA Claims by Repeat TCPA Player—But Suggests the Dream Might be Achievable

Can a Defendant ban a TCPA repeat player from ever suing it again by using open-ended language in a settlement agreement? That seems to be possible following a ruling in a new suit from last week.

In Cunningham v. Vivint, Inc., Case No. 2:19-cv-00568-DBB-CMR2021 U.S. Dist. LEXIS 101999 (D. Utah  May 28, 2021) a court refused to enforce such a term, but only because it was unclear whether that was what the parties had actually agreed to.

Here’s the clause at issue:

Cunningham hereby waives the right to commence, institute, participate in or prosecute any lawsuit, action, or other proceeding against the Vivint Released Parties, DSI Released Parties, and Trips Marketing Released Parties relating to, arising from, or in connection with the Telephone Consumer Protection Act or any other telemarketing law.

Defendant—rather cleverly in my view—argued that this clause had no temporal limit and literally meant what it said—Cunningham can never ever sue the Defendants respecting the TCPA or any related telemarketing provisions ever again. And while some might wonder whether such a clause is enforceable on public policy grounds, the Court suggested it was prepared to enforce the term and ban future suits—if that’s what the parties had actually agreed to.

But the Court was not convinced.

Cunningham countered that the sentence immediately before this provision spoke of a release respecting claims that had arisen as of the date of the settlement agreement. So, in context, this ban only referenced claims that had arisen as of the date of the agreement.

The Court determined a jury would need to solve this dilly of a pickle. So we’ll wait and see what happens next.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 153
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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...

213-689-6510
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