Assessing the TCPA Legal Landscape, Post-Facebook

Now that the Supreme Court has issued the long-awaited ATDS ruling, it seems as though the floodgates may have been opened. There was a big increase in the number of lawsuits made in the month leading up to the Facebook v. Duguid ruling. Now that the ruling has been made, it’s time to assess the legal landscape and share perspectives about how the number of lawsuits will evolve in the months to come.

What kinds of trends have been identified since the Facebook ruling?

In short, it seems that there cases are still being filed, but not in the same kind of volume as previous periods. It may still be a bit early to assess trends because it can take a while for cases to be pushed through the court system.

There has been a noticeable uptick in cases that are considered low hanging fruit for the plaintiff’s bar. Cases such as Do Not Call and Pre-Recorded Call Messages are completely independent from Autodialer cases, which is perhaps why the plaintiffs are focusing on them right now. Plaintiff lawyers have not been shy about saying they are going to focus on Pre-Recorded Message cases because it also triggers residential landlines and mobile phones.

Are plaintiff lawyers going to focus on Text Message cases?

There has been an increase in Text Message cases recently as well because plaintiff’s bar still thinks they have an argument on many text message platforms with respect to the autodialer fight. Perhaps the plaintiff’s bar is wanting to test out the theories they have about how the Facebook ruling works with text message platforms. It will be interesting to see how courts will look at the random sequential number generation and Facebook ruling in the context of a text message platform.

Does a text message count as a pre-recorded message?

Going back in the history of the TCPA rulings, they were always anticipating pre-recorded messages to be voice messages. Even though a text message is deemed to be a call for the purposes of the TCPA, courts have not deemed a text message to count as a pre-recorded voice call. The voice part is the key here, but only time will tell if they make changes or clarifications on this in the future.

Watch the webinar replay to learn more about what counts as human intervention, how it applies to the ATDS ruling, and what the legal landscape looks like for the near future.

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