KMT’s David Klein Weighs in with Forbes Legal Newsline on the TCPA, Text Messages

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September 5, 2017


An Illinois federal court’s decision refusing to dismiss a lawsuit brought against a university over a series of allegedly unsolicited text messages is “unfortunate,” says one of the most recognized attorneys in the technology and telecommunications fields.

David O. Klein, managing partner of New York City-based Klein Moynihan Turco LLP, said the July 28 ruling by the U.S. District Court for the Northern District of Illinois, Eastern Division, likely will result in “potentially protracted” litigation.

Judge John Z. Lee, in his 10-page memorandum opinion and order, said plaintiff Ricky R. Franklin, who is representing himself, “adequately alleged” a cause of action for DePaul University’s violation of the Telephone Consumer Protection Act.

“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,” Klein said of Lee’s ruling, which came at the very early stages of the lawsuit.

Current TCPA regulations prohibit businesses from making automated, pre-recorded calls without written consent from those on the receiving end. The law permits any “person or entity” to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation.

Franklin alleges DePaul violated the TCPA by sending a series of unsolicited texts to his cell phone starting in November 2015.

He contends he never provided his phone number to the university, nor did he give prior express consent to be called.

According to his complaint, upon receiving the initial message, Franklin immediately responded by replying “Out.” DePaul’s automated system responded with, “ShopText: Sorry we didn’t understand your text. Or your session expired. Check the spelling and reply w/ the keyword. No quotes or spaces. For help, reply HELP.”

Franklin states he sent several subsequent text messages in an attempt to stop the messages, but continued to receive at least 17 unsolicited texts after telling the university to stop contacting him and continues to receive such messages.

DePaul challenged Franklin’s standing to bring the case, arguing there is now a more stringent standard to show injury-in-fact to establish Article III standing following the U.S. Supreme Court’s decision in Spokeo v. Robins.

In its ruling last year, the nation’s high court explained that for an injury to be particularized, it must affect the plaintiff in a “personal and individual way.” The injury-in-fact also must be “concrete,” which means “real” and “not abstract.” “Concrete” is not necessarily synonymous with “tangible.”

“Although the contours of Spokeo are still being flushed out, courts post-Spokeo have continued to find Article III standing in cases alleging violations of the TCPA where the defendant placed unsolicited calls to a consumer’s cell phone,” Lee wrote. “Accordingly, even post-Spokeo, the Court concludes that Franklin has Article III standing to bring this suit.”

As the judge explained in his order, in ruling on a motion to dismiss for lack of standing, he will not presume an injury to be “too minor.”

Doing so would be “inconsistent with the court’s duty to draw reasonable inferences of fact,” Lee wrote, concluding that Franklin’s complaint is sufficient to survive DePaul’s motion.

Klein, whose firm practices in the area of telemarketing and Internet marketing law and counsels clients on a broad range of technology-related matters, said there is a split developing among district courts nationwide concerning treatment of such 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,” he told Legal Newsline.

“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.”

Klein contends the plaintiffs’ bar has used the TCPA as a vehicle to bring countless lawsuits, dating back to when the law was revised in October 2013.

Some have abused the statute to bring ‘shakedown’ suits against responsible telemarketers and judges have taken notice,” he said, adding that his own firm is defending numerous TCPA actions across the country and responding — on a weekly basis — to “baseless” demand letters on behalf of his regulatorily-compliant clients.

He argues the TCPA was intended to prevent telemarketing abuse, improper debt collection calls and general nuisance calls.

“A single call would not seem to meet this standard,” he said, noting there is a petition before the Federal Communications Commission to exempt from liability calls to reassigned telephone numbers.

Such calls would be defined as those to called parties that have not provided consent, but were called in good faith by the telemarketer thinking that it was reaching the prior owner, who had provided TCPA consent to receive calls through automated means, Klein explained.

But other changes to the law need to be made, he said.

“Level the playing field in such a way that telemarketers can go about their business in a way that is not cost prohibitive but, at the same time, maintains consumer protections that the law was enacted to address,” he said.

Recently, a House subcommittee heard suggestions on how to modernize the law.

On June 13, the Subcommittee on the Constitution and Civil Justice heard testimony during a hearing titled “Lawsuit Abuse and the Telephone Consumer Protection Act.”

“I think that the law should be modernized in a way that limits the filing of lawsuits by vexatious plaintiffs,” Klein said.

For example, the definition of “autodialer” within the present meaning of TCPA regulations arguably includes all telemarketing equipment short of a rotary phone, he said.

“This is too expansive a definition, one that could be interpreted to require TCPA consent for every manner of telemarketing call that exists today,” he said. “Certainly this was not the intention.”

Source: Forbes Legal Newsline

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