Archives for May 2019

Last week, the Seventh Circuit Court of Appeals issued an opinion where it affirmed a district court’s decision to cut plaintiff’s attorneys fees to $10,875 from the originally requested $187,410. The decision in question is Paz v. Portfolio Recovery Assocs., LLC, No.  17-3259 (7^th Cir. May 15, 2019).

The factual and procedural background of this case revolves around two Fair Debt Collection Practices (FDCPA) lawsuits against Portfolio Recovery Associates, LLC (PRA).

The First FDCPA Suit

PRA purchased and attempted to collect on plaintiff-appellant’s defaulted credit card account. Plaintiff filed an FDCPA lawsuit against PRA, alleging that PRA failed to credit report his account as disputed. PRA promptly issued an Offer of Judgment (OOJ) pursuant to Federal Rule of Civil Procedure 68.  

Editor’s Note: A Rule 68 Offer of Judgment is a litigation tool that caps a plaintiff’s fee recovery at the time the offer was made if the plaintiff refuses the OOJ and fails to obtain a judgment that is better than what was offered. The policy is to not allow plaintiff or his counsel to unreasonably continue litigation for the sole purpose of drumming up legal fees if plaintiff would have fared better accepting a settlement offer earlier in the litigation rather than from succeeding at trial.

[article_ad]

Plaintiff accepted the Rule 68 OOJ, which excluded an admission of fault. This resulted in a judgment entered against defendant and resolved the suit.

The Second FDCPA Suit

After this, defendant continued to credit report the account without marking it as disputed, so plaintiff sued again. Like with the prior suit, defendant again issued a Rule 68 OOJ for $3,501 plus attorney fees, disclaiming any admission of fault. Plaintiff never responded.

Prior to trial, defendant issued a regular offer to settle the matter for $25,000 plus fees, which plaintiff rejected. Plaintiff succeeded at trial, but since he was unable to show actual damages, he only recovered $1,000 in statutory damages.

When attorney fees came up, plaintiff requested $187,410 to cover all defense fees through trial. The district court, however, slashed this amount to just over $10,000. According to the district court, plaintiff rejected reasonable offers to settle and, since he recovered less in damages than the Rule 68 OOJ offered, the court only allowed him to recover attorney fees up until the Rule 68 OOJ was presented.

Seventh Circuit Decision

The Seventh Circuit affirmed the district court’s decision and found that the court did not abuse its discretion. In its decision, the Seventh Circuit held the plaintiff and his counsel to task on two points.

First, plaintiff attempted to argue that he did not fully understand what a Rule 68 OOJ meant and that the terms were so ambiguous, specifically as to attorney fees, that the offer was rendered worthless and rejecting it was reasonable. The court disagreed, finding:

Paz’s position inheres with an air of unreality. He suggests he had little idea what the offer meant, yet his counsel—in this case and others—had previously accepted offers with identical terms and, in doing so, managed to negotiate and receive a reasonable amount to cover legal fees. All Paz’s counsel had to do was request a fee award that would cover the time necessary to finalize the settlement. This would not have been difficult given the relative simplicity of the claims. By no means was this a scenario where a defendant conveyed an incomprehensible offer or acted in bad faith by setting a trap to preclude a plaintiff from recovering a reasonable amount in attorneys’ fees as part of a settlement.

Second, plaintiff attempted to argue that he received a better result through trial—despite recovering a lower damages amount—because the Rule 68 OOJ specifically disclaimed defendant’s liability. A judgment on the merits for the maximum statutory damages is “much better,” according to plaintiff. The court again disagreed, finding:

Settlement offers regularly disclaim liability, and PRA’s having done so here was in no way out of the ordinary. What Paz overlooks is that his acceptance of the offer, by operation of Rule 68, would have resulted in a judgment being entered against PRA. The moment such a judgment hit the district court’s docket, the prior disclaimer of liability would have been a dead letter. Furthermore, by the very terms of PRA’s offer, the ensuing judgment would have been for $3,501 plus reasonable attorneys’ fees and costs. Paz’s counsel had to know—from his prior experience in this case alone—that PRA’s disclaimer of liability in its Rule 68 offer would not preclude an award of attorneys’ fees.

The Seventh Circuit sums up this situation poignantly:

The time associated with the $187,410 in attorneys’ fees did not reflect the sort of reasonable attorney work that is often inevitable as part of traveling a diligent litigation course. To the contrary, the vast majority of the fees Paz sought to recover were for time spent pursuing an unsuccessful and ill-advised effort to win a much bigger payoff than was even remotely possible in the circumstances giving rise to his claims. This observation is precisely what led the district court to conclude that $10,875 was a reasonable fee award. Paz and his counsel cannot now force PRA to pay the legal expenses for their failure, so the reduced fee award in this case was appropriate and far from an abuse of discretion.

insideARM Perspective

With the litigation dilemma faced by the ARM industry, it is important for debt collectors to utilize any tool that is available to minimize defense costs. The Rule 68 OOJ is a tool that should be considered whenever an FDCPA suit is filed. Unless a debt collector wants to pursue the case on the merits to result in a positive judgment on the merits for the industry, the OOJ can help cap the plaintiffs’ bar’s efforts to drum up attorney fees.

A Rule 68 OOJ and the FDCPA do not address a defendant recovering its own defense fees, but a situation like the above—where the plaintiff fights through trial after rejecting an OOJ that covers at least the statutory damages—will likely not happen frequently. Plaintiffs’ counsel earn revenue by recovering attorney fees; if they have no reason to believe they will recover more than the statutory damages, then they risk wasting their time by continuing to fight a case in which their fees will be capped.

ARLINGTON, Va. and ROCKVILLE, Md. — Numeracle and The iA Institute’s Consumer Relations Consortium (CRC) announced the release of a Call Labeling Benchmark Report.

In response to the increasing prevalence of improper call blocking and labeling experienced across the Collections industry, Numeracle partnered with the CRC to conduct a Benchmark Study.

This study set out to examine the impact of call blocking and labeling on a cross-section of participating member organizations within the CRC to identify strategies to improve caller ID presentation across this industry. 

The intiative uncovered that nearly half of all sampled phone numbers were at risk for improper call blocking and labeling. Data was inclusive of multiple call blocking and labeling analytics sources, representing both the wireless service provider and 3rd party app ecosystem.

Individual organization risk ratings ranged from 27% to 75% of all numbers improperly listed in ‘high’ to ‘severe’ risk categories. All organizations experienced some form of subsequent incorrect caller
ID labeling.

Click here to download the report.

About Numeracle

Numeracle is working with major carriers, analytics companies, app developers, device manufacturers, and industry leaders to deliver a path to visibility and control into the new calling ecosystem.

Through the company’s technology vision and industry leadership, Numeracle is laying the foundation for returning trust and transparency to customer communications. To learn more about Numeracle’s call blocking and labeling solutions for call originators and call centers, visit www.numeracle.com.

About the Consumer Relations Consortium

Part of the iA Institute (parent of insideARM), the Consumer Relations Consortium (CRC) is a membership group for forward-thinking creditors, technology providers, and larger collection agencies and law firms. The CRC has two primary areas of focus: regulatory policy and technology innovation. Members engage with regulators, consumer groups and other stakeholders to produce common sense legal, process and technology solutions. To learn more about the CRC, visit www.crconsortium.org.

SYRACUSE, N.Y. — Jarrod Turner was hired as a Collections Manager at Capital Collection Management (CCM), a third-party collections agency and debt buyer that empowers consumers and businesses to repay their debts in a professional, ethical, and empathetic manner. 

In his role, he supervises all levels of CCM employees, oversees company-wide training, manages collections software development, company policies and procedures, as well as all clients and collections within the company.

An ACA-certified collections specialist with nearly a decade of industry experience, Turner was previously with ConServe, an accounts receivable management company, where he served in management roles on consumer, commercial, and government contracts.

Turner has in-depth knowledge of industry compliance and ethics, including FDCPA, TCPA, UDAAP, and FCRA regulations. Turner earned a bachelor’s degree in Management from Keuka College and an associate’s degree in Business Administration from Finger Lakes Community College, and holds numerous certifications through Dale Carnegie.

[article_ad]

About Capital Collection Management

Capital Collection Management is a third-party collections agency and debt buyer that empowers consumers and businesses to repay their debts in a professional, ethical, and empathetic manner. CCM strictly adheres to compliance standards with federal and state laws, and is powered by state-of-the-art technology and data analytics that help ensure the best return on collections. Exceptional customer service is a cornerstone of CCM’s business, and its ACA-certified collectors protect its customers’ brands by collecting in a respectful manner to deliver the highest rate of return.

Casey Arthur was hired as a VP of Business Development by Capital Collection Management (CCM), a third-party collections agency and debt buyer that empowers consumers and businesses to repay their debts in a professional, ethical, and empathetic manner. 

In this role, he manages CCM’s sales efforts, strategically launching new products and services, in addition to ensuring CCM’s high customer service standards continually improve and evolve to fit the needs of each individual client. 

An ACA-certified collections specialist with over a decade of industry experience, Arthur previously was Regional Director of Business Development at ConServe, an accounts receivable management company, where he also served in a multitude of operations management roles on consumer, commercial, and government contracts. 

Arthur has deep industry knowledge of compliance, ethics, FDCPA, TCPA, UDAAP, FCRA, GLBA, and HIPPA regulations. He earned an associate’s degree from Finger Lakes Community College and holds numerous certifications from Dale Carnegie and VitalSmarts.

[article_ad]

About Capital Collection Management

Capital Collection Management is a third-party collections agency and debt buyer that empowers consumers and businesses to repay their debts in a professional, ethical, and empathetic manner. CCM strictly adheres to compliance standards with federal and state laws, and is powered by state-of-the-art technology and data analytics that help ensure the best return on collections. Exceptional customer service is a cornerstone of CCM’s business, and its ACA-certified collectors protect its customers’ brands by collecting in a respectful manner to deliver the highest rate of return.

Yesterday, the Federal Communications Commission’s (FCC) Chairman Ajit Pai proposed a new avenue to combat illegal robocalls: a declaratory ruling allowing phone companies to establish a default setting to block unwanted calls. In addition to default blocking, the proposition would allow customers to opt in to more aggressive call blocking tools, such as the ability to block calls from numbers not on the customer’s contact list. The FCC’s announcement also proposes a safe harbor for phone providers that implement a “network-wide blocking of calls that fail caller authentication under the SHAKEN/STIR framework once it is implemented.” The FCC’s fact sheet contains more detail about each of these propositions.

Chairman Pai states:

Allowing call blocking by default could be a big benefit for consumers who are sick and tired of robocalls. By making it clear that such call blocking is allowed, the FCC will give voice service providers the legal certainty they need to block unwanted calls from the outset so that consumers never have to get them … And, if this decision is adopted, I strongly encourage carriers to begin providing these services by default—for free—to their current and future customers. I hope my colleagues will join me in supporting this latest attack on unwanted robocalls and spoofing.

According to the FCC’s press release on the issue, uncertainty about whether call blocking tools are legal under the FCC’s rules caused many voice providers to hold off on development. The proposed declaratory ruling seeks to remedy this.

The FCC will be seeking comments on its Further Notice of Proposed Rulemaking on the safe harbor provisions regarding SHAKEN/STIR.

These issues will be heard at the FCC’s June meeting, which will be held on June 6 at 10:30AM EDT. A live webcast will be available on the FCC’s website.

[article_ad]

insideARM Perspective

For industries that rely on telephone communications with their customers, the FCC’s proposed declaratory ruling could have a big impact. While nobody is denying that illegal robocalls are an issue, default blocking as a solution—especially when the procedures are not yet refined or accurate for figuring out which calls are from legitimate businesses versus from illegal robocallers—seems premature and could have broader unintended consequences. One way to make sure the FCC views the full picture is for stakeholders to provide comments to the Commission prior to its June meeting.

DALLAS, Texas — Solutions by Text wants to applaud the Consumer Financial Protection Bureau in understanding the popularity of communicating via text message and incorporating that communication channel in its proposed rule implementing the Fair Debt Collection Practices Act.

The CFPB earlier this week released its proposed debt collection rule to update and amend the FDCPA, which was initially enacted in 1977 and, in fact, references telegrams and collect calls. The FDCPA does not currently include any provision that explicitly governs the use of digital technologies, such as text messaging and email, despite the widespread popularity that both channels share among consumers.

Under the proposed rule, debt collectors would be able to communicate with consumers via text messaging when following specific steps and taking necessary precautions to ensure consumers can opt-out from receiving future communications via an electronic channel.

“Solutions by Text is excited with this new chapter in the evolution of debt collecting,” said Danny Cantrell, the company’s Chief Executive Officer. “Text messaging is such a common communication platform and lends itself to giving consumers an easy way to interact with debt collectors and make payments. We are hopeful that what the CFPB has proposed this week is ultimately included in a final rule.”

Collection agencies may be more likely to use digital technology channels like text messaging following a proposal from the CFPB to limit the number of calls and conversations that collectors can have with consumers.

“Communicating and making payments via text messaging allows consumers to take care of business on their own time, according to their schedule,” Cantrell said. “Consumers don’t have to wait for a phone call; this proposal gives consumers more power to manage their finances and allows consumers to conduct business using a communication platform that sees billions of messages sent every day.”

Solutions by Text is excited at the prospect of working with the Consumer Financial Protection Bureau as it seeks to help modernize debt collection and align consumer communication preferences with compliant processes and procedures.

About Solutions by Text

Solutions by Text (SBT) is a division of Marketing Response Solutions, LLC, a privately held corporation whose primary focus is global delivery of critical information in an SMS format. SBT is a premier partner on the US Short code registry and has developed proprietary software designed to adhere to regulations within the mobile device industry.

For more information regarding products and services offered by Solutions by Text may contact us at 800- 979-1212 or visiting www.solutionsbytext.com.

ROCHESTER, N.Y. — Throughout the month of May, Continental Service Group, Inc., d.b.a. ConServe is hosting spring blood drive in partnership with Upstate New York Transplant Services (Unyts).  On May 8th & May 9th, ConServe had a great turnout at their Henrietta, and Buffalo, New York offices, with 28 “Whole” blood donors.  Every unit collected can save up to three lives. On May 15th & 16th , the Unyts “Donate Life Express Bus” will be onsite at ConServe’s Fairport, New York Office.  George Huyler, Vice President of Human Resources at ConServe, is expecting a great turnout, “our blood drives are always a huge success, it is evident that our employees feel good about helping our community and realize the importance of saving lives through the gift of a blood donation.”

“As Western New York’s only community blood bank, Unyts concentrates on fulfilling the blood needs of a single region. Often as a result of this locally-driven operation, donation rates rise among the area population and costs decrease on the part of area purchasers” said Mark Simon, President & CEO of Unyts.  “Community blood banks are neighbors helping neighbors – and by giving blood with Unyts you are making sure your family, friends, neighbors and other members of the community have blood available when they need it.  It’s important for Unyts to partner with organizations that truly give back to this community. ConServe has been doing just that for years, and we are happy to have them as part of our team.”

Hanna Shaffner, an Operations Services Representative at ConServe, states:

To me, giving blood is a selfless act that can save someone’s life. It is a quick, simple task that can have a long lasting effect for someone in need. Donating blood is just a small way of giving back to the community, and it was extremely convenient having this option available at work.

About ConServe

ConServe is a top-performing award-winning provider of accounts receivable management services specializing in customized recovery solutions for our Clients. Anchored with ethics and compliance, and steadfast in our pursuit of excellence, we are a consumer-centric organization that operates as an extension of our Client’s valued brand.  For over 33 years, we have partnered with our Clients to give them peace of mind while simultaneously helping them achieve their goals.  Visit us online at: www.conserve-arm.com

[article_ad]

About Unyts

Established in 1981, Unyts is among the leading procurement organizations in the United States, and is one of only eight centers nationwide to house organ, eye and tissue procurement in one location. With the addition of Community Blood Services in 2007, Unyts was the first organization of its kind nationwide. Unyts operates as a non-profit serving the eight counties of Western New York and works to assist donor families, coordinate the donation process and increase knowledge and awareness within the community regarding transplantation.

The age-old question of when the statute of limitations begins to run on Fair Debt Collection Practices (FDCPA) claims seems to be coming to a head. Specifically, we may soon have a definitive answer about whether the clock starts ticking when the violation occurs or when the consumer discovers the violation, also known as the “discovery rule” in common law.

Editor’s Note: Generally, common law applies unless a statute addresses the issue, in which case the statutory law applies.

Two recent developments include (1) the Second Circuit finding that the discovery rule does not apply and (2) the Supreme Court of the United States (Supreme Court) granting a petition for writ of certiorari—a request for the Supreme Court to hear a case—on the same issue.

[article_ad]

Second Circuit: Clock Starts Ticking When Violation Occurs

In Benzemann v. Houslanger & Associates, PLLC, et al., No. 18-1162-cv (2d Cir. May 13, 2019), the Second Circuit found that the discovery rule does not apply to FDCPA cases and that the clock begins when the violation occurs.

The underlying facts consist of a bank freezing plaintiff-apellant’s accounts pursuant to a judgment collection effort by a debt collector against a different person. This freeze occured twice; the second account freeze is the subject of the FDCPA suit. The timeline of the second freeze is as follows:

• December 6, 2011: Debt collection firm sent restraining order for plaintiff’s account.
• December 13, 2011: Bank froze plaintiff’s account, plaintiff called bank after realizing he couldn’t access his accounts (did not get details), and plaintiff called his attorney in the evening.
• December 14, 2011: Plaintiff learned that the bank froze his accounts.
• December 14, 2012: Plaintiff filed the FDCPA claim.

This case went back-and-forth between the Southern District of New York and the Second Circuit. The Second Circuit’s first review of the matter resulted in a remand instructing the district court to specifically answer whether the discovery rule applied. The district court found that the common law discovery rule does not apply to FDCPA claims and that the statute of limitations begins when the violation occurred. Since the violation here—when the bank account was frozen—occurred one year and one day before the suit was filed, the district court granted summary judgment to the debt collector.

The plaintiff again appealed, but the Second Circuit affirmed the district court’s decision. The appellate court ruled that the FDCPA explicitly denounces the common law discovery rule by clearly stating that a claim must be filed within a year “from the date on which the violation occurred.”

Supreme Court Agrees to Hear the Issue

The petition for the Supreme Court to hear the case, granted on February 25, 2019, arises out of a Third Circuit decision in Rotkiske v. Klemm, No. 16-1668 (3d Cir. 2018), which insideARM previously published an article about. The Third Circuit found exactly as the Second Circuit did above. Like the Second Circuit, the Third Circuit considered this a matter of statutory interpretation. Since the FDCPA explicitly defines that the statute of limitations begins to run on the date of the violation, the common law discovery rule does not apply.

The petitioner argues that consumers “blamelessly ignorant” about violations when they occur and, therefore, the discovery rule should apply.

insideARM Perspective

As insideARM previously predicted, the issue was ripe for Supreme Court review due to a jurisdictional split. The Third and now Second Circuits find that the statute is clear: the clock starts ticking when the violation occurs. The Fourth and Ninth Circuit found differently.

The Third Circuit addressed the the Fourth and Ninth Circuits’ decisions, finding them erroneous. The Forth Circuit, according to the Third Circuit, did not look to the text of the statute when making its decision—a fatal flaw in the context of statutory interpretation. The Ninth Circuit went off the cuff and considered the Supreme Court’s prior case “under advisement” rather as binding authority. The Supreme Court case in question is TRW Inc. v. Andrews, 534 U.S. 19 (2001), which found that Congress may implicitly provide that the discovery rule does not apply where it spells out a more restrictive rule in a statute.

The odds of the Supreme Court finding that the discovery rule applies are slim. In statutory interpretation, the law as written is always the first consideration; any deeper dive into legislative intent and history occurs only if there is ambiguity. The FDCPA is clear: the suit must be filed within one year of the occurrence of the violation. There is no mention of discovery of the violation. By explicitly addressing when the statute of limitations begins to run (in other words, spelling out a more restrictive rule per TRW), Congress implicitly stated that the discovery rule does not apply. Considering the Supreme Court’s recent narrow interpretations of the FDCPA on other issues, it is likely to do the same on this matter.

NEW YORK, N.Y. — KM² Solutions is proud to announce that it has joined the Global Impact Sourcing Coalition (GISC). The GISC is a global network of businesses creating jobs for those most in need through the power of procurement and global supply chains. It is a coalition that recognizes inclusive employment practices creating access to opportunities in disadvantaged communities and regions.

Impact Sourcing is a business practice whereby companies prioritize suppliers that hire and provide career development opportunities to people who otherwise have limited prospects for formal employment, such as those who were previously long-term unemployed or living under the national poverty line. “The GISC envisions a world in which all people have the opportunity to obtain productive employment and decent work,” says Sara Enright, Project Director of the GISC, “We are excited to welcome KM² to the GISC and commend their efforts to advance inclusive employment opportunities across the Americas.” Through participating in GISC, KM² Solutions will promote and advance wide-scale adoption of Impact Sourcing while sharing its own best practices with coalition members.

All GISC provider member companies are encouraged to adhere to the Impact Sourcing Standard which is the first globally recognized standard for the business practice of Impact Sourcing. It defines the minimum requirements and voluntary best practices for providers of business products and services to demonstrate their commitment to inclusive employment. The GISC has also been developing guidance to help companies define, measure, and continually improve the outcomes that Impact Sourcing initiatives achieve for workers, their households, and communities. The end goal is to create access to opportunities that enable better lives for employees while delivering better performance for clients.

KM² Solutions firmly believes that the right to have a decent job should be universal. As a company, KM² has been conducting inclusive and ethical hiring practices since its inception. “KM² operates in many countries where citizens have limited access to gainful employment and we have been able to create over 4,000 permanent jobs in these populations,” says President and CEO, David Kreiss, “Not only does KM² provide meaningful career opportunities in these locations, but we also invest heavily into the development of knowledge training and community improvement plans through our KM² Cares program.” The GISC resources, including the Impact Sourcing Standard and guidance on defining and tracking social impact, now helps put these initiatives into a measurable and actionable framework. Globally, GISC members have committed to hire 100,000 impact workers by the end of 2020.  KM² Solutions plans to make a significant contribution to that commitment.

For more information, please contact Dana Kreiss, SVP of Marketing at dana.kreiss@km2solutions.com.

[article_ad]

We’ve been tracking the exploits of James Everett Shelton over the last few weeks. The Pennsylvania resident was recently the focus of a Pennsylvania Record story regarding his multiple TCPA suits and a couple of recent decisions spinning out of these suits have pushed the standing limits in TCPAWorld—with one decision finding Shelton had standing to pursue his claims but another suggesting a scheme to collect illegal B2B phone calls would not afford prudential standing.

Well in a third case involving Shelton—and the one highlighted in the Record story— the court entered a verdict in his favor last week after the Defendant failed to respond to duly-served requests for admissions. See Shelton v. Fast Advance Funding, CIVIL ACTION NO. 18-2071, 2019 U.S. Dist. LEXIS 77535 (E.D. Pa. May 8, 2019). But although the Defendant was found to have violated multiple provisions of the TCPA willfully, the Court still only awarded a per call violation for each of the 22 calls at issue—and not a per violation penalty for each of the 66 or so violations of the statute Plaintiff had demonstrated.

Drilling down a bit, the Court found that each of the 22 calls at issue had violated § 64.1200(c)(2)(barring telemarketing calls made to a residential number registered with the national DNC), § 64.1200(d)(1) (preventing solicitation calls being made without an internal DNC policy), and 47 C.F.R. § 64.1200(d)(3) (requiring a caller to log the name and contact information of a party requesting not to be called). Despite the multiple violations of regulations, however, the Court concludes that the language of § 227(c)(5) anticipates a plaintiff receiving $500 per call, and not $500 per violation per call.  This is so because the statutory provisions specifically ties recovery to the initiated call: “Plaintiff’s private right of action for all counts arises under § 227(c)(5), which specifically states that a person must “receive[] more than one telephone call within any 12-month period . . . in violation of the regulations” to have a private right of action.”

As the Court explains in a footnote, the reference to the word “call” in the private right of action suggests that a violation of the statute is not the trigger for recovery—it is, in fact, a call. The court does, however, find that the violation were willful—again based on the RFAs that were deemed admitted—and elected to treble damages. So Plaintiff netted a recovery of $1,500 x 22= $33k, which is bad but not as bad as the $99k he was seeking.

Shelton is an interesting case for a number of reasons. First, it represents yet another recovery by a repeat-TCPA Plaintiff that may or may not be running a fake business merely to collect illegal calls to sue for. Second, the case demonstrates why discovery in federal court must be taken oh-so-seriously—the court showed no appetite for Defendant’s efforts evade the effect of their failure to timely respond to the Plaintiff’s discovery demands. But most of all, of course, Shelton stands solidly for the proposition that multiple violations of the TCPA’s complex DNC rules and regulations will only net one recovery per call. And while one can question the wisdom of a rule that essentially treats multiple violations as equivalent to one, given the massive penalty affixed to any violation it can hardly be suggested that callers are getting away with anything here. This is especially true as the Court elected to treble damages—why don’t courts just double damages once in a while?—so Plaintiff was truly well compensated for these calls.

One important note, the Shelton case was pursued under 227(c)(5)—which gives rise to causes of action for violations of the TCPA’s DNC rules. Most TCPA cases, however, are brought under 227(b)(3)—which affords a private right of action for ATDS or pre-recorded calls made without consent. The language of the private right of action in 227(b)(3) affords a recovery for a violation of the TCPA’s delivery restrictions, not for a call. While some courts have yet held that 227(b)(3) also affords recovery only on a per call basis—as is logical in context—other courts draw the distinction between the language of 227(c)(5) and 27(b)(3) to reach the contrary result. Yet another trap for the TCPA unwary. Be careful out there TCPAWorld.

—

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP — and all insideARM articles – are protected by copyright. All rights are reserved.