[California Attorneys Work Together on TCPA Cases ]

With large and unscrupulous defendants, easy-to-find plaintiffs, and substantial statutory damages, this practice area has been offering great potential for profitability and growth for many attorneys – as well as substantial recovery for their clients. It was almost “killed” by some courts’ narrow interpretation of the statute and finally brought back to life by the 9th Cir. Court of Appeal.


The News.

Thursday, September 20, 2018, 8:16 am.

E-mail from a Lead Co-Counsel Joshua Swigart. [Headline:] “Big TCPA Win in 9th Cir.”

Click. [Reading:] “Very very big case. Stakes could not have been higher.

First appellate case issued post DC court of appeal ruling against the FCC.”

Attachment. [Opening:]

For Publication.

United States Court of Appeal for the Ninth Circuit.

Jordan Marks v. Crunch San Diego.

But before taking a deep dive into this epic opinion and its far-reaching consequences, let us recap the story for attorneys who have not been previously involved in this practice area …

The Statute.

Unwanted calls and automated text messages are among the FCC’s top consumer complaints. The TCPA provides up to $1,500 in statutory damages for each automated call, pre-recorded message or text message sent to consumers from an Automatic Telephone Dialing System (an “ATDS”) and/or prerecorded voice system in violation of the statute.

Considering how many calls, massages and other ATDS and prerecorded voice communications companies send out to their consumers on daily basis – the amounts of TCPA settlements are often very substantial, and this practice area for a long time has been a favorite of plaintiffs’ attorneys seeking impactful class payments. 

The Issue.

The issue with TCPA cases was rooted in a statutory definition of an Automatic Telephone Dialing System. The TCPA defines the ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 USC 227(a)(1).

In 2015, the FCC made a suggestion that a device would meet the definition of an ATDS if it had the capacity (including “potential functionality” and “future possibility”) to dial random or sequential numbers. See 2015 Declaratory Ruling, 30 FCC Rcd. at 7971–72. The FCC acknowledged that its definition could sweep in all smartphones.

The D.C. Circuit, however, set aside the FCC’s interpretation as an unreasonably expansive reading of the statute. See ACA International v. Fed. Communications Commission, 885 F.3d 687 (D.C. Cir. 2018). This decision had the effect of narrowing liability for businesses that call or text customers.

The Opinion.

A team of consumer protection attorneys at Hyde and Swigart, APC and Kazerouni Law Group, APC fought for the future of the statute…

They appealed an unfavorable decision of a district court in Marks v. Crunch San Diego that held that the automatic text messaging system used by Crunch was not an ATDS under the TCPA because it lacked the present or potential capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.”

In light of ACA International, and based on its own review of the TCPA, the United States Court of Appeal for the Ninth Circuit ruled that the statutory definition of an ATDS also includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.


Why And How TCPA Attorneys Should Work Together Today.

The consequences of this decision are far-reaching: by separating the “random or sequential number generator” requirement from the storage requirement, the 9th Circuit re-introduced a broad interpretation of the ATDS and brought this practice area back to life. This is because now an ambiguity as to whether predictive dialers are ATDS has gone away in the 9th Circuit.

While the case law is in split and rather unsettled, it is very important that attorneys that have deep knowledge of this practice area litigate TCPA cases with a lot of planning, thought, and having a thorough strategy in place to ensure that this practice area stabilizes in favor of consumers and their attorneys.

TCPA attorneys at Hyde and Swigart and Kazerouni Law Group work with other plaintiff attorneys on TCPA-related cases. We encourage attorneys entering this legal market to consult with us – because together we can do better.

>>If you have any questions about your TCPA cases or this practice area, contact us today by submitting your information below<<

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