The year 2019 saw a lot of changes for the TCPA (Telephone Consumer Protection Act). At the outset of 2019 launching a TCPA suit was a “done deal”, with such things as FCC rulings, the Hobbs Act and the “Bad Reyes” decision being used in cases where the use of predictive dialers were being questioned.

Much of the furor centers around consent on the part of the “current subscriber” and the possibility that such consent is revocable, either in part or as a whole. As more cases came before the Eleventh Circuit Court more varied decisions were made, even to the point where suggestions were made that TCPA suits can not even be subject to arbitration. All-in-all though rulings still favored the consumer and cases – including big-bucks class action cases – flooded the courts.

Things started changing in July of 2019 with a decision regarding the FCC’s rule regarding solicited faxes; the Eleventh Court reversed an earlier ruling it had made when it decided that Hobbs Act didn’t prevent district courts from reviewing FCC TCPA rulings – that flip-flop caught everyone napping. The other shoe still hadn’t dropped though; just a month later the same appellate court that had decided numerous times that an unsolicited text message might not cause Article III standing suddenly did a 180 in Hanna v Salcedo and decided that the plaintiff had to have evidence that the text message actually harmed them in some way.

But there were still more surprises to be had. In the Cordoba case from November, the Eleventh Court decided that member of a class action who suffered no injury could not recover at trial – in other words, it was an all-or-nothing proposition – unless all class members suffered injury there could be no class certification.

Different state courts even arrived at different decisions, with Florida courts being no exception. Some courts held that TCPA consent was graven in stone, while before the year had come to an end the Glasser decision was handed down stating that TCPA only applied to calls made using a random or sequential dialer and that TCPA dialing restrictions were not applicable outside the sphere of marketing.

So what’s the bottom line in all of this? Basically that in a single year the Eleventh Court ran the entire gamut from best to worst when it came to being class action friendly litigation. While 2020 is still young and full of uncertainty, at least at this time the Ninth Circuit Court has become the fulcrum for TCPA class actions.

Original article can be found here.

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