TCPA Class Action Litigation

The Telephone Consumer Protection Act has been around for more than 30 years, but the courts have experienced a recent flood of TCPA class action litigation. The TCPA prohibits anyone from calling or texting with an automated dialing system unless the recipient has authorized such contact. Express consent is required for robocalls and automated texts. Communication with those on the National Do-Not-Call Registry is forbidden.

Why is TCPA class action litigation on the rise?

TCPA class actions have increased for a number of reasons.

Increasingly, mobile devices have become the communication channel of choice. People used to have a primary home phone (where most solicitations were sent) and a private mobile phone (only given out to friends and family.) With more families ditching home phone service in favor of mobile phones, individuals are more accessible than ever, but also more protective of their privacy and easily agitated by business solicitations. 

Some court rulings have made it easier for plaintiffs to take legal action. There is no denying the widespread problem of businesses using personal data for marketing purposes without explicit permission. As a result, some rulings have made it easier for plaintiffs to file class-action lawsuits by enforcing strict compliance with TCPA requirements. For example, plaintiffs no longer must show that they were “damaged” by the calls, but only that they did receive unsolicited communications.

Recent TCPA news provides evidence of court crackdown

To kick off 2020, 50 TCPA cases (most of them class actions) were filed in U.S. courts in just one week.

Recent TCPA cases include:

• A win for Haagen-Dazs: Class action certification was sought for half a million Haagen-Dazs customers who received an automated text message from the business after providing a phone number for a rewards program. The cashier who signed up the plaintiff was supposed to inform customers of this automated text but did not. Ultimately, the court denied certification, stating it did not fulfill FRCP 23’s typicality requirement. Though one customer did not receive information about the automated text from the cashier, other members of the class were likely notified.

• Sirius XM settles: Satellite radio provider Sirius XM settled with more than 433,000 plaintiffs over alleged TCPA violations, including marketing calls to people on the National Do-Not-Call Registry. One plaintiff alleged he received 16 calls on his home phone line, which persisted after he sent a “cease and desist” letter to the company.

• Cannabis delivery company wins in court: A plaintiff claimed a cannabis delivery company sent unsolicited text messages without prior consent. However, when moving to certify the class, a judge dismissed the claim because screenshots of customer reviews served as the only “evidence” that other potential class members existed.

• A win for Direct TV: Two classes sued Direct TV in Massachusetts – those on the Do Not Call Registry and those who did not provide consent for solicitations. The judge dismissed the case, ruling that the class members were not ascertainable because the plaintiff used weak expert testimony and unreliable methodology to define the class. There were also not enough common issues to the claim, as some plaintiffs did not ask the company to stop calling them.

What are the risks of a TCPA class action?

Defendants face substantial financial risks. Companies are concerned about these developments, as there is no set cap on damages for these cases. In addition, the amount of compensation is not determined “per case” or even “per claimant” – but per TCPA-violating call, text, or fax. The going rate of a single violation ranges from $500 to $1,500, so it is not uncommon for TCPA plaintiffs to collect multi-million-dollar settlements.

Plaintiffs face the burden of class certification. While it is easier than ever to bring a TCPA violation claim in court, joining others into a class action is a different matter. Defendants often seek to defeat class certification based on ascertainability, including for absent class members. Otherwise, plaintiffs face outright dismissal without the possibility of settlement.

Heffler Claims Group provides class claims administration services related to alleged TCPA violations including pre-litigation consultation, compliance with the law, class certification, potential claimant notification, website creation, call center staffing, and settlement distribution. Learn more about how we can help.