August 7, 2017

tcpa-lawsuitDePaul University (“DePaul”) recently lost a Spokeo-based challenge to a Telephone Consumer Protection Act (“TCPA”) lawsuit.  The denial, which comes at the very early stages of the TCPA lawsuit, will likely result in a potentially protracted litigation, which involves allegations of unsolicited text message marketing.

How does the denial of the Spokeo-based challenge to a TCPA lawsuit fit the recent trend?

The decision to dismiss a Spokeo-based challenge to TCPA claims follows an unfortunate recent development: federal courts are taking an increasingly unsympathetic approach to Spokeo challenges in the TCPA space.  Notwithstanding the decision against DePaul, however, there is a split developing among district courts nationwide concerning treatment of these Spokeo-based TCPA legal challenges.   Some courts have relied on the Spokeo decision to dismiss lawsuits in which plaintiffs allege no harm or injury beyond their mere receipt of telemarketing calls that were allegedly placed in violation of the TCPA.  However, other courts, like the court that denied DePaul’s motion to dismiss, have been inclined to find that receipt of even one unsolicited call or text message to one’s cell phone placed through use of an autodialer is precisely the manner of injury that Congress intended to remedy through passage of the TCPA and, thus, sufficient to survive a Spokeo­­-based challenge.

Protect Your Business from TCPA Lawsuit Liability

This case demonstrates the ongoing and continued aggressive pursuit of telemarketers for alleged autodialer-related TCPA violations.  Having lost its Spokeo-based challenge, DePaul University will be exposed to mounting legal fees as the TCPA lawsuit proceeds, as well as a potentially significant judgment on TCPA liability claims.  Marketers and advertisers alike should heed the lessons of cases like this and take note that, in today’s regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel in order to avoid potentially disastrous consequences in the event that a class action plaintiff or federal regulator brings a TCPA lawsuit for alleged telemarketing-related violations.

If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are facing an investigation from the FCC or other regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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