iSometimes I feel like everyday is Halloween here on TCPAWorld.com. We’re constantly publishing stories that are–at best– cautionary tales and–at worst–true horror stories.
I’ve picked through the apple barrel and come up with the 10 scariest themes of all this year to chill your blood and quicken your pulse.
Honorable (Terrifying) Mentions
There were so many great scary TCPA tales to share this year but I told myself I was only going with the top 10. That left out a bunch of blood curdling narratives that merit a morbid mention.
Consider the plight of campaigns and operatives who are facing numerous TCPA fights over political speech. We may not want to be bothered with these messages every four years, but it is tough to deny the First Amendment is being trampled over every time a candidate is sued under the TCPA.
Then there are the Cannabis companies that continue to be absolutely creamed in TCPA class actions, along with ringless voicemail users who have found absolutely no shelter from the TCPAWorld courts.
Worse yet is the expansive read courts are taking on pre-recorded messages– is every live call that uses a snippet of a pre-recorded voice subject to the TCPA’s delivery restrictions regarding pre-recorded voice calls? We won’t know until the FCC rules on a critical petition that remains pending.
But as scary as these stories are, they simply don’t reach the blood-all-over-the-walls-and-house-talking-in-creepy-deep-voice-level. But these stories do.
No. 10: Platform Liability for TCPA Violations by their Users Continues to Expand
Just a few years ago a text or calling platform that offered users the chance to send their own messages faced virtually no TCPA risk. Following the Omnibus it seemed that such user-initiated messages did not implicate the platform utilized to send the message as a “maker” of the call or text. But beginning with Hurley v Messer, TCPAWorld has witnessed a gradual chipping away of that rule, and recent cases have made it really difficult for platform providers to escape liability in TCPA suits–even where they were little more than the supplier of calling or texting technology.
No. 9: TCPA Defendants Unwittingly Encouraging TCPA Litigation With Whacky Settlements, Blind Hubris and Cy Pres Payments
2020 has been a whacky year all around, and in TCPAWorld that means a bunch of self-inflicted wounds by TCPA defendants. Remember that time a Defendant paid $75k to a TCPA Plaintiff in a one call case? Or that time the Defendant refused the opportunity to stay an appeal of the ATDS definition pending Facebook, only to earn a negative ruling from the Sixth Circuit? (If Allan ends up being the determinative decision in the big SCOTUS appeal I will make fainting a thing again.) But the worst is the fact that TCPA defendants have participated in funneling potentially MILLIONS of dollars in cy pres funds to the NCLC— an organization that prominently and constantly advocates for MORE TCPA LITIGATION. Nothing scarier than TCPA defendants tossing so much money and (figurative) ammunition to the “bad guys.” Scary scary scary. Eesh.
No. 8: Completely Whacky Certification Rulings
The TCPA defense blooper reel is nothing compared to some of the court rulings we’ve seen this year, however. One ruling in particular seemed to turn Rule 23 analysis entirely on its head- emphasizing just how utterly unpredictable certification rulings can be. And since certification is often the difference between a quick and painless exit from the case, on the one hand, or a multi-million dollar settlement (or verdict) on the other, courts departing from well-worn certification jurisprudence in favor of TCPA-specific analysis is really quite… horrifying.
No. 7: Courts Refusing to Enforce Arbitration Disclosures
TCPAWorld courts behaving badly is going to be a theme the rest of the way through here folks. And if there is one absolutely crystal clear 2020 TCPAWorld theme it is this: Courts are pushing back against enforcing website arbitration disclosures. Like over, and over again. Its brutal folks. Like Theon Greyjoy at the Dreadfort brutal. Let’s hope this is also ultimately some sort of long-winded redemption story that we’ll eventually lose all interest in.
No. 6: Calling Recycled Numbers is Still A Problem in 2020
If there’s anything worse than years-late GOT references its this– the TCPA is still being applied in ruthless strict liability fashion in the context of recycled numbers. (At least most of the time.) The Ninth Circuit even recently went out of its way to clarify that the “called party” that needs to provide consent is definitely not the person the caller is trying to reach, because of course it did. And that long-awaited reassigned number database? Trapped in a Haunter-style administrative time loop forever. Muhahahahahaha.
Kidding, its sort of almost here.
No. 5: The FCC May Be Getting Rid of Some Long-Cherished TCPA Exemptions
When you get around to reading Dennis Brown’s Ode to the TCPA— and you will– you’ll chuckle at his explanation of how the FCC came to exempt a huge category of commercial calls to landlines. (I will not repeat it here both out of decorum and because the front cover of his self-published book says “[n]o part of this publication may be reproduced…in any form or by any means, or stored in a database or retrieval system…” which I find intimidating for some reason.)
But the truth is that the Commercial Purposes exemption along with eight additional (critical) exemptions, many of which have been around for decades, are up for review right now as the FCC implements Section 8 of the TRACED Act. This is one of the biggest (and potentially scariest) TCPAWorld stories going, but not too many folks are talking about it since, you know, there are still four scarier stories to talk about.
No. 4: The Plaintiff’s Bar is Still Making Millions off the TCPA
Even as some courts continue to crack down on TCPA class litigation, the TCPA just keeps minting millionaires.
Freedom Mortgage just put $3MM bucks into the pockets of Avi Kaufman because it was robocalling its servicing portfoilio.
And lest you think those are excessive payouts, don’t forget that a California court recently authorized an eye-popping, brain-busting, $89MM in attorneys fees following trial of a certified TCPA class action.
And of course we still don’t know what the fee award in the insane ViSalus TCPA case will be— will it break nine figures? Yep.
*insert repetitive scream track here*
No. 3: Individual Officers and Employees Can Be Personally Liable for TCPA Violations
I don’t know how this story isn’t number one, yet somehow the fact that individual employees working for (or running) companies that are found to have violated the TCPA might be PERSONALLY liable for those violations is only the third scariest story in TCPAWorld right now. Others might disagree– like Porch CEO Matt Ehrlichman who is currently facing a $54MM TCPA lawsuit aimed at him personally, and two other co-founders of the company.
Then there was that CEO who was sued for trying to help his company comply with the TCPA.
Then there’s the all-time dreadful story of Gene Kalsky who nearly lost everything because he sent a fax to a customer in Arkansas–a state he had never visited– and got sued for violating the FCC’s solicited fax rule– which doesn’t even exist anymore-and ended up with a $12.5MM judgment against him, and lost his house in a foreclosure sale, which then came to life and haunted its new owner by repeating “Bias Yakoov” over and over again in a creepy deep voice. Ok that last part was a Halloween flourish, but would also make the story somewhat redeemable. (In real life he earned a remarkable reprieve from the Arkansas Supreme Court after his house was seized for auction in New Jersey and lived happily ever after… but that’s not scary enough for this post.)
No. 2: The Constitution Can’t Save you From the TCPA
Oh sure, the TCPA is big and scary but your not frightened right? Because you’re an American. And as long as you’re an American your rights are safe. You can speak freely and there are protections against excessive fines and vague enactments on speech that chill legitimate expression. I mean, right?
Yeah right dude. This is TCPAWorld. The Constitution won’t protect you here.
Not only has the U.S. Supreme Court bent over backward to keep the TCPA on the books–and absolutely destroyed the First Amendment to do so— the district courts are refusing to protect callers from the TCPA’s vague provisions under the due process clause. The result is that the TCPA cripples legitimate speech every single day– and there’s absolutely nothing you can do about it big guy.
In the meantime Courts have also refused to apply other parts of the Constitution to protect callers against massive soul-crushing, business-ending judgments.
Indeed, the only thing the Constitution is good for in TCPAWorld these days is keeping TCPA defendants trapped in unpredictable state courts.
1. Uncertainty Continues to Reign Supreme in TCPAWorld
With billions on the line, no constitutional rights to protect you, and staring down potential personal liability, the last thing you want in this haunted horror mansion is… not knowing what the rules of the game are.
I mean, even Jigsaw once remarked: “The Rules Of Our Game Have Been Made Very Clear. You Need To Abide By Those Rules.”
Yeah well.. not in TCPAWorld folks. Our game is just as brutal, but the rules are yet to be determined.
What’s an ATDS? Ha, good luck sorting that one out.
The Supreme Court is likely to rule on this issue in the Facebook ATDS appeal of course—assuming Sergei doesn’t just dismiss the case after oral argument-– but until then, confusion reigns supreme. (And some courts won’t even stay cases to wait and find out.)
But ATDS is just a piece of the uncertainty. We still don’t know who the “called party” is for consent purposes. Not sure whether contractual consent can be revoked. Who knows if calls/texts/faxes always cause harm for standing purposes? Are multiple recoveries available under the statute? Personal liability always available? Can class representatives be picked off with a full payment of sums owed? Can out of state class members recover in a TCPA suit? Must Article III issues impacting unnamed class members be taken into account at the certification stage? Are incentive awards available?
And the biggest and most terrifying jack-in-the-box of all: a horrendous battle over whether calls from November, 2015 to July 6, 2020 are actionable under the TCPA at all following AAPC. The confusion caused by AAPC– much like the confusion stemming from ACA Int’l back in 2018–promises to dwarf the concerns leading up to the original ruling and promises millions in aggregate lawyer fees fighting out an issue that is–once again–bound to end up at the Supreme Court.
And in the meantime- no one really knows what the law is, and whether it is even enforceable.
So I ask you–gentle reader and terrified friend–what is scarier than an all out litigation free-for-all with uncapped statutory damages, billions in exposure on the line, and a flock of sophisticated millionaire plaintiff’s lawyers that specialize in preying upon TCPA novices perched like vultures on a wire ready to feast?
Chilling, no?
So with that, have a cup of warm milk and crawl into your nice warm bed, trying not to tremble at the dark shadows lurking in the corner this Halloween night.
