December 8, 2021

Volume XI, Number 342

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December 07, 2021

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December 06, 2021

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HAPPY THANKSGIVING TCPA.WORLD: Here are the Top 10 Stories You Can be Grateful for This Holiday

So last night the Fruit Duck conveyed the Czars personal gratitude to all TCPAWorld denizens (especially my clients–but also including everyone).

Today I present the stories that you too should be grateful for. The little silver linings in a world that is so often grey and stormy.

So without further adieu, here are the top 10 TCPA stories you should be grateful for this Thanksgiving.

10. Vendors Who Know What Their Doing

It's a scary world out there, and it's great to have people on your side you can count on. Most of the time those “people” are guys like the Czar. But they can also include great vendors that really know what they're doing and take compliance seriously. Companies like Drips, Active Prospect, DNC.com and Customer Dynamics come to mind.

And so does a company like Fluent–that MASSIVELY saved the day for a TCPA Defendant that may been facing “lights out” due to a huge certified TCPA case. Thanks to Fluent’s compliant lead process, however, the Defendant walked away with a decertification order.

Those guys should be counting their blessings… and sending cider by the caseload over to Fluent’s compliance team.

9. The Reassigned Number Database

For too many years callers were left completely defenseless when making outbound calls to consented phone numbers when the number changed hands.

Here’s the issue: The TCPA allows for calls to be made with the “express consent” of the called party–but the courts have interpreted the “called party” to mean the person that receives the call, not the person the caller is trying to reach. So when a number changes hands the caller can be liable for calls to the new phone number owner, despite their having consent from the previous owner of the phone. And this is true even if the caller did not know the number changed hands!

Finally, we have a solution. The reassigned number database–which just went live this month–allows callers to know whether or not a number has changed hands before placing calls. While the system is a bit cumbersome to use and operationalize, it is an essential tool that all call centers should keep in mind and look to use and one we should all be grateful for as we’re passing the mashed potatoes.

8. Personal Liability is Less Automatic than it Used to Be

The most unfair rule in the entire American legal system is that employees can be held personally liable for the acts of a business that violate the TCPA, even if the employee took steps solely in connection with their job responsibilities. Sent an illegal fax because your boss told you to? Sued. Made a phone call you weren’t supposed to because the campaign parameters were off? Busted.

Mercifully, mere ownership of a company alone doesn’t make you liable for illegal calls and some courts continue to push back on the idea that employees can be held liable in the first place. It's a small sliver of good news considering how bad personal liability is under this law.

7. Arbitration is Commonly Granted and the Courts Seem to be Back to Enforcing Online Disclosures Again

The single biggest TCPA trend of 2020 was courts refusing to enforce online arbitration provisions. There was a ton of scrutiny over online forms and the Courts were seemingly looking for any excuse to deny arbitration last year. I did an entire MASTERCLASS series on the topic of express consent and repeatedly discussed the headaches attendant enforcing online webform submissions arising as a result of these cases.

But 2021 has seen a return to normalcy as many decisions have again enforced online arbitration provisions and sent would-be TCPA class action plaintiffs to individual arbitration proceedings. Seems like somebody’s wishbone dreams came true.

6. The TCPA Summit is Coming up!

Speaking of dreams coming true, as difficult as the TCPA is to navigate its great that there’s a Summit coming up where stakeholders can join with experts and legal professionals to learn and exchange ideas about the TCPA and compliance.

It is an absolutely critical resource–with days of content related to TCPA, call deliverability, and privacy regulatory issues. The agenda is stuffed like a good cornucopia and everyone is going to learn a ton–even me. Knowledge is the best gift, and an opportunity to gain so much is truly worth being grateful for.

5. Hunstein is Vacated

So many of my friends and clients were suffering under the ridiculous Eleventh Circuit ruling suggesting that sharing information with a mail vendor was a violation of Federal debt collection law. It was a bad ruling when it was handed down, and it became even worse when the panel decided to evade the Supreme Court’s ruling in Ramirez with an amended decision that doubled down on the original errant premise.

I knew the assembled Eleventh Circuit wouldn’t let us down–and I was right. The Court has vacated the panel’s Hunstein ruling and granted en banc review, just like I said it was going to.

So I guess that’s two things you have to be thankful for– Hunstein evaporating, and your knowing a guy who can see the (legal) future.

4. Contract Terms Saving Callers from a World of TCPA Hurt

So much risk in the lead space right now. While Human Selection might be the only magic bullet for lead buyers who make their own calls–more on that below–for companies that buy warm transfers, 2021 has proven to be quite the year for contract pros.

Earlier in the year we saw the miraculous win by Royal Seas cruises after they were absolutely slapped around in a TCPA class action for much of the case. But they got the last laugh when the Court found they could not be liable for the actions of their vendors because their contracts were so well drafted. Caliber Home Loans found itself the beneficiary of a similar ruling later in the year when a court found it could not be liable for the actions of downstream vendors it did not contract with.

On the other hand, Allstate has not been so lucky. Hopefully, they’ll have something to be thankful for moving in 2022.

3. Human Selection Dialing

When Facebook was first handed down it was supposed to be the great end of all ATDS cases under the TCPA.

Not even close.

What it really ended up being was a sea change for individuals that had previously used click-to-dial systems to assure TCPA compliance. Overnight those systems went from bulletproof to possibly problematic. And at the same time, the Florida mini-TCPA converted any system that automatically selects numbers to be called–even if they are dialed manually–into an autodialer.

What a nightmare.

Miraculously, it seems, a critical compliance solution–the Human Selection dialer--hit the market roughly the same time that Facebook was decided, and these dialers have huge promise in thwarting the onslaught of Florida FTSA lawsuits. (Doors never close without windows opening and all that.)

And given the lead fraud specter, human selection systems may end up being the ultimate “silver bullet” that allows telemarketers to stay in business in a world where webform submissions are not as reliable as they seem.

Now that is really something to be thankful for.

2. The First Amendment

As one of the country’s prominent First Amendment lawyers, I believe strongly in truthful free speech–although I am quick to support enactments designed to prevent the spread of scams and falsehoods.

So whereas I’ve repeatedly called on Congress to ban lies, cheating, and stealing via phone calls–no matter what technology is used–I am equally ardent in my defense of businesses who want to make lawful, honest and constitutionally-protected phone calls to their customers. That should never be illegal. Same thing with HONEST political communication.

The TCPA remains the single broadest restriction on honest, constitutionally-protected speech in our nation’s history. Its a terrible blemish on the First Amendment, and one that is applied unfairly and unevenly all across the country. It's really a shame this statute has lived on as long as it has.

But I am THANKFUL that the Supreme Court’s AAPC decision appears to have handed everyone the dynamite they need to finally end the TCPA’s run of shame–and I am not talking about Creasy.

The TCPA is still massively broad considering its limited intended use–which is why the FCC and the Courts have repeatedly made content-specific carve outs for certain categories of favored speech. But AAPC says that these carve outs cannot live alongside a broad restriction on other forms of speech–that deprives speakers of the “equal protection” of ideas that the Supreme Court recently exalted. (Hey, the First Amendment may not be what it used to be, but at least it's still an ironing board.)

It won’t be long–I predict–before the courts have to take the content-specific exemptions of the TCPA head-on and in a way that has never been done before. The First Amendment will win out yet. Mark my words. (And remember, I always end up being right about these things in the end.)

Now that’s something to reflect on while waiting for Uncle Rick’s pumpkin pie to cool on the countertop.

1.a. Repeat TCPA Players May Soon be a Thing of the Past…

How sweet will the world be when manufactured lawsuits and dishonest TCPA class representatives are a thing of the past?

We’re getting there.

Just a few weeks back the TCPAWorld stood in wide-eyed wonder beholding the lonesome death of Ken Johansen’s career as a TCPA class representative.

The idea that a called party can play along and invite further calls to set up a class action was a notion so terribly unfair that it drove folks absolutely crazy when it happened. Now, at least, the illogical calamity of plaintiffs creating their own harm and suing for it–and on behalf of a class, no less–seems to be coming to a close.

And that ought to put a smile on your face, even while you’re wrestling for the cold turkey left overs Friday morning.

1.b. Plaintiff’s Lawyers Setting up TCPA Suits Is Not Really a Thing Anymore Thanks to Navient

Hark to the tail of Navient, a TCPA hero true…

I still cannot believe Navient took claims against Plaintiff’s lawyer Jeff Lohman to trial and won. The guy was encouraging people not to pay Navient in a bid to set up TCPA suits. Navient convinced a jury that the conduct was illegal and that it was thereby damaged over a million bucks.

Without question Plaintiff’s lawyers around the TCPAWorld will need to take note of this one. Only “clean” tactics to bring in TCPA suits from now on. Hopefully.

And I know I for one am grateful for their hard work in making TCPAWorld a fairer and more ethical place. Again, nice work!

***

So that’s it for my rundown of TCPA news to be GRATEFUL for. As I said last night, I am sincerely grateful to and for all of you in TCPAWorld. If you feel the same way remember to tell a friend or family member about the blog on Thursday. Will be a great distraction from all those uneasy political conversations you have to have.

If there’s one thing all Americans can agree on it's this–the TCPA sucks. It creates bad lawsuits against good companies. And it does absolutely nothing to stop the onslaught of scam robocalls we all have to live through day and night.

 

Happy Thanksgiving TCPAWorld!

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 328
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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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