May 14, 2021

Volume XI, Number 134

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Spike in New TCPA Filings Says it All: DNC and PreRecorded Voice Claims Are Pouring In

During the peak of the TCPA lawsuit epidemic I would see 15-20 cases filed a day.

Between AAPC and Facebook that number dropped a ton–some days we’d see zero filings. Most often it was between 2 and 5.

Well guess what folks? We’re back up to 15 filings a day this week.

So buckle up.

I wrote about the “next wave” on Monday, but let me give you another example.

A guy in Florida is suing a solar company for DNC violations. The complaint alleges numerous calls to his phone number–which is on the DNC–without consent. In the old days this would have been an ATDS claim. But since Facebook the claim is simply pleaded as a DNC case.

Moreover, the case also adds the always-dangerous internal-DNC class action. Those of you who have read my 2020 Year End Review know that those claims are on the rise. You must have an internal DNC list if you’re making marketing calls. AND written policies. AND  training. Yes, even if you are not using an ATDS. Yes, even if you’re scrubbing the NDNC list. Yes, some courts authorize a private right of action in this context (even though they shouldn’t.)

This is dangerous stuff.

The Complaint is here: Kapinos complaint

Now nation DNC claims are slightly less dangerous than ATDS claims because i) you have to call twice in a 12 month period to trigger a claim; and ii) the statutory recovery is up to $500.00 per call, not a mandatory $500.00. Plus you always have the argument that the phones were used for business purposes. (No such defenses/limitations exist for pre-recorded marketing calls, however.)

But still, these claims are dangerous, and–in case anyone has forgotten–the Fourth Circuit Court of Appeals has deemed them a “model of clarity” that are ready-made for certification. So BE CAREFUL!

Also big news coming later today. So check back in around 4 pm eastern.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 106
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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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