March 28, 2023

Volume XIII, Number 87


March 27, 2023

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IS THIS THE FUTURE AFTER FACEBOOK?: New Robocall Class Action Seeks $5,000 a Call Under Virginia State Law

As TCPAWorld denizens know well, 2021 is stacking up to be a monster year for the TCPA.

Indeed, in the next 60 days we are expecting a ruling from the United States Supreme Court on the TCPA’s definition of automated telephone dialing systems that may CHANGE EVERYTHING.

Most of us are expecting SCOTUS to adopt a narrow TCPA ATDS definition–meaning that the federal response to robocall will suddenly be limited to claims about pre-recorded calls and DNC violations. But true “autodialed” calls–whatever that means–will no longer be actionable.

Again, that’s if the Supreme Court reads the TCPA’s ATDS definition narrowly (and it will.) 

But just because the federal “robocall” statute might be on the way out that doesn’t mean that callers are free to ramp up their dialers. Indeed, the well-funded and enterprising Plaintiffs’ bar is on the hunt for the next big thing, even as TCPA ATDS cases continue to be viable in many jurisdictions.

No surprise that state law corollaries to the TCPA are attracting big attention at the moment, and perhaps no state has a more interesting (scary?) anti-robocall statute than Virginia.

The Virginia Telephone Privacy Protection Act  (VTPPA) limits marketing calls to numbers on the DNC–much like the TCPA– but purports to create a $5,000.00 per call damage remedy and appears to authorize a private right of action. (The case law here is developing so I don’t want to get out ahead of myself.) And it appears that class action treatment may (may) be available under Rule 23 although such actions are not generally recognized under state law in Virginia.

To wit, a new class action suit was just filed yesterday in the E.D.Va. alleging that Marketpro Homebuyers violated both the TCPA and the VTPPA by sending unsolcited marketing texts. (Notably the texts at issue were actually offers to purchase a home from the call recipient, so it is not at all clear that these messages were actually marketing.)

The complaint seeks to recover an eye-popping $5,000 per call on behalf of certain class members. The complaint can be found here: Cavey complaint

So is in the works? Well, no (although I’m sure some squatter just picked up the domain to spite me.) Nonetheless, its a brave new world for callers as state-level robocall statutes are receiving more attention than ever.

And as the new Cavey filing demonstrates some of these state laws purport to offer remedies that dwarf the meager $500.00 per call remedies available under the TCPA.

More to come on this. Unfortunately.

© 2023 Troutman FirmNational Law Review, Volume XI, Number 35

About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...