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TCPA Class-Action Trends To Watch in 2018

When it comes to the Telephone Consumer Protection Act, collection agencies always need to be on their toes, because plaintiffs’ attorneys are very good at changing tacks and using new strategies in filing lawsuits.

Along with new strategies, rulings on lawsuits that have already been filed as well as regulatory activity from the Federal Communications Commission make the TCPA an always-evolving landscape.

Paul A. Werner and David M. Poell, a pair of attorneys from the law firm of Sheppard Mullin, recently published an article that shares five trends related to TCPA class-action lawsuits that should be watched throughout 2018.

  • Have the GOP’s Hopes for Enacting the Fairness in Class Action Litigation Act Been Dashed?
    • The House of Representatives passed the bill last year, but it has sat in the Senate for nearly 12 months with no activity. The bill, among other things, would dictate the method by which to calculate attorneys’ fees in a class action and significantly limit recoverable attorneys’ fees to a “reasonable percentage of (1) any payments received by class members; and (2) the value of any equitable relief.”
  • The FCC’s Progress and Speed in Resolving the Backlog of TCPA Petitions
    • The FCC is sitting on a number of requests for declaratory ruling, mainly related to what defines “prior express consent.”
  • Will Courts Continue to Snuff Out Flu-Shot Reminder Call Class Actions?
    • Lawsuits have been filed against companies for sending text message reminders to get individuals to have a flu shot. Those resulted in a number of TCPA lawsuits, many of which have been struck down because the messages are being deemed to be “healthcare messages,” which are allowed under the TCPA.
  • The Supreme Court Considers Cert. Petition in TCPA Class Action Seeking Resolution of the “Ascertainability” Circuit-Split
    • There is a split at the Appeals Court level regarding the “proper interpretation” of the ascertainability requirement under Rule 23. Petitions have been filed with the Supreme Court, but no decision as to whether the court will hear arguments has been announced yet.
  • The Extinction of Post-Spokeo Challenges to Article III Standing in TCPA Cases?
    • Trying to use the Spokeo defense when a single call or text message has been sent has “not gained significant traction,” according to the lawyers. The “future remains uncertain for the viability of such challenges. “


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