TCPA: No Harm, No Foul?
Can Class Certification Be Defeated in TCPA Cases by Asserting a "No Injury" Defense?
Telephone Consumer Protection Act (TCPA) class actions are commonly brought against defendants, where plaintiffs seek tens of millions of dollars based on the plaintiff’s receipt of one silent text or one or two calls that went to voicemail. Defendants increasingly are challenging the validity of these cases on the grounds that class members suffered no obvious harm or economic loss by receiving these communications. Recent cases in the Ninth and Eleventh circuits have addressed these challenges, resulting in a split among the courts.
Our panel of experts discussed these challenges and made predictions on where the courts are going in this area. Topics included:
- The criteria used by courts to determine if plaintiffs have suffered a “concrete” compensable injury or “injury-in-fact”
- Recent “no injury” case law on telephone and text message claims
- Whether and when “professional plaintiff” conduct may result in baring an action under Article III of the US Constitution
- Whether the plaintiffs’ type of cellular or VOIP plan matters in establishing economic injury
- What experts can do to help assert or defend against a “no injury” challenge.