August 12, 2020

Volume X, Number 225

August 11, 2020

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August 10, 2020

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Keep Up Already!: 3 Quick Graphics Demonstrate the Rapid Evolution of the TCPA’s ATDS Landscape

Well folks I have a quick 30 minute window that was just handed to me so why don’t I use it to illustrate the big TCPA ATDS changes afoot here in TCPAWorld.

As we reported yesterday, the Sixth Circuit Court of Appeals has now entered into the fray and held that the TCPA’s ATDS definition applies to dialers that call (or text) from a list of numbers automatically, at least when the dialer is being used in automatic fashion.  Previously the Sixth Circuit was an “undecided” jurisdiction.

We’ve also seen similar big developments at the district court level in the Fourth and Eighth Circuit Court of Appeals footprint recently.

So how big–and bad–are these changes for TCPA defendants? Let’s look at the visualizations.

The original heatmap we prepared as part of the Squire Patton Boggs 2019 TCPA Year End Review, shows much of the country still undecided. This map was prepared in February, 2020–just five months ago. You’ll notice the Sixth Circuit was leaning red at the time but the Second Circuit was yellow:

FEBRUARY, 2020

heatmap.jpeg

Just 15 days ago we updated the ATDS heatmap to account for recent decisions, including Duran and the Trump case out of the Eleventh Circuit. Now the Second Circuit was deep red and the Eighth Circuit was leaning red. The Sixth Circuit, meanwhile, had reverted to neutral:

JULY 15, 2020

heatmap.jpeg

Following the events of the last two week, the heatmap has taken a decidedly crimson turn as two big pro-Plaintiff ATDS cases have turned the playing field on its head. Here is the updated version:

JULY 30, 2020

NEWheatmap.jpeg

That’s a pretty gory map. As you can see well over half the nation is now following, or leaning toward, the Marks approach. This is a clear departure from where we were a few months back. And with briefing due in the SCOTUS Facebook appeal next month, the Plaintiff’s bar certainly has the wind at its back.

I have a huge webinar set next Thursday for Statflo where I will be discussing ATDS issues and a whole bunch more. Keep an eye out for a promo piece.

In the meantime we’ll keep an eye on the ATDS landscape for you.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 212

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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...

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