November 30, 2021

Volume XI, Number 334

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November 29, 2021

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Judges Can’t Stand Telephone Consumer Protection Act Claims

Telephone Consumer Protection Act (TCPA, 42 U.S.C. § 227) claims often are a waste of time and money. The plaintiffs frequently are serial (some having filed dozens of claims) and usually want to receive the alleged spam so they can sue and cash in. The harm is slim to non-existent, and the economic burden of the litigation on defendants (and the courts) is staggering. In a ruling on August 8, U.S. Northern District of Illinois Judge St. Eve ruled that she wouldn’t “stand” for this state of affairs any longer (or at least not with respect to the facts before her). She found that because the plaintiff was not in the “zone of interests” intended to be protected by the TCPA, the plaintiff lacked statutory standing. See Tel. Sci. Corp. v. Asset Recovery Solutions, 2016 U.S. Dist. LEXIS 104234, at *50 (N.D. Ill. Aug. 8, 2016).

Robot, CallAs a result of selling a tool for screening alleged robocalls, plaintiff Telephone Science Corporation (TSC) claimed it had received a lot of calls in violation of the TCPA. Id. at *4. Judge St. Eve ruled that because the whole purpose of TSC’s business was to identify/screen robocalls, it couldn’t sue under the TCPA based on receipt of those robocalls. Id. at *48–50. In other words, TSC’s claims did not implicate the interests against privacy intrusion and nuisance underpinning the TCPA.

In so holding, Judge St. Eve cited approvingly another district court decision finding that a serial TCPA plaintiff who had purchased cell phones solely to gin up TCPA claims similarly lacked statutory standing because she fell outside the zone of interests intended to be protected by the TCPA. Id. at *50 (citing Stoops v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 82380 (W.D. Pa. June 24, 2016)). According to the Stoops court, “Plaintiff’s interests, which include purchasing cell phones with the hope of receiving calls from creditors for the sole purpose of collecting statutory damages, are not ‘among the sorts of interests [the TCPA was] specifically designed to protect.’” Stoops, 2016 U.S. Dist. LEXIS 82380 at *47 (citation omitted).

The TCPA plaintiffs’ bar almost certainly would condemn the following statement as heresy, but methinks they doth protest too much: Most TCPA putative class representatives click their heels with glee when they receive what might be determined to be unsolicited communications in violation of the TCPA, and many of them have established a cottage industry in league with plaintiffs’ class action attorneys to file and collect on (usually via settlement) TCPA putative class action claims. Judge St. Eve’s decision gives those of us on the defense side of the TCPA bar hope that the real motivations underlying these cases will cause judges to declare them outside the zone of interests intended to be protected by the TCPA and thus devoid of statutory standing.

© 2021 Vedder PriceNational Law Review, Volume VI, Number 224
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About this Author

Blaine C. Kimrey, media defense Litigation, Vedder Price Law Firm Chicago Office
Shareholder

Blaine C. Kimrey is a Shareholder in the Litigation practice area in the firm’s Chicago office.

A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property,...

312-609 7865
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