Prerecorded Recall Disaster: Automated Messages Urging Mayoral Recall Lead to Certified TCPA Class Action
Big TCPA trouble in Music City.
Some outfit in Tennessee styling itself “No Tax 4 Nash” is in a (TCPA) world of hurt after using pre-recorded messages in a bid to recall local candidates.
Apparently, Nashville’s mayor and city council members supported a recent tax hike and that made some folks grumpy. So they cranked up a pre-recorded call campaign and hammered a bunch of folks off the Davidson County Election Commission list.
The calls went out July 16, 2020, and they were sued in a TCPA class action the very next day. And now—less than nine months later—No Tax 4 Nash is facing a certified class action that may cost it millions.
In Elrod v. Tax, NO. 3:20-cv-00617, 2021 U.S. Dist. LEXIS 68418 (M.D. Tenn. April 08, 2021) the court certified the case against Defendant noting that the “thousands” of calls at issue easily meet Rule 23’s numerosity threshold. The Court also notes that Defendant did not dispute that it used precorded voices to contact voters without their express consent. Since political calls are not exempt from the TCPA, the Court had no problem determining that common issues predominated here.
Plaintiff went so far as to lodge the Davidson County voter rolls with the Court to aid in the identification of class members. Nice trick.
In the end, the class definition needed a little bit of work since the class consisted of individuals that received calls “between July 16, 2020, and [July 17, 2020]” which makes no sense. But with a little mop-up this case will be certified and No Tax 4 Nash may soon be no more. (Oh, and the effort to recall the mayor failed.)
- Again, prerecorded call cases are still dangerous after Facebook;
- Political calls are not exempt from TCPA coverage;
- Music City is cool with taxes.