• Best CPA Networks
  • Best Cost-Per-Sale Affiliate Networks
  • Best Pay-Per-Call Networks
  • mThink Digital
  • Thought Leadership
    • White Papers
  • About
    • Content Marketing
    • Content Strategy
      • Web Content
      • Social Media Strategy
      • Webinars & Video
      • Thought Leadership
    • Performance Marketing
    • Portfolio
      • Revenue Performance
      • Accenture
      • Microsoft
      • Java Detour
      • Our Process
    • Contact Us

mThink

Blue Book Logo

BlueBook Logo

The Trusted Name in Performance Marketing

ROS Leaderboard

  • Home
  • Blue Book
    • About Blue Book
    • Blue Ribbon Panel
    • Interviews
    • Research Methodology
    • Back Issues
    • Advertising
      • Website Creative Specifications
      • Newsletter Creative Specifications
  • Best CPA Networks
  • Best Cost-Per-Sale Affiliate Networks
  • Best Pay-Per-Call Networks
  • Best European CPA Networks
  • Best CPA Networks for Affiliates
  • Best CPA Networks for Advertisers

Court Addresses Unconstitutional TCPA Damages and Who Can be Held Liable

July 19, 2019 by Richard B. Newman

A company that managed the ownership rights of a film hired a company to promote and market the film.  There were approximately 3.2 million telephone calls made over a short period of time that delivered a prerecorded audio message from former Arkansas Governor Mike Huckabee.

The two plaintiffs received two voice messages and subsequently initiated class action litigation, alleging violations of the Telephone Consumer Protection Act (“TCPA”) against the film’s financier, the marketing company and others involved in promotional efforts.

A district court held that the named plaintiffs possessed standing but reduced the damages awarded from $1.6 billion ($500 per call) to $32 million ($10 per call).  Interestingly, the district court refused to provide a jury instruction on the financier’s personal liability.

The case was appealed to the Eighth Circuit – which had already ruled on a prior appeal in the case that the named plaintiffs had standing.  However, given recent judicial developments with respect to TCPA jurisprudence, the Eighth Circuit opined that “[t]he harm to be remedied by the TCPA was ‘the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements.’”

Specifically, the Eighth Circuit considered a standing analysis under the Supreme Court’s  Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) opinion, and held that the “harm here was the receipt of two telemarketing messages without prior consent,” which harm “bear[s] a close relationship to the types of harms traditionally remedied by tort law, particularly the law of nuisance.”

On the damages issue, the Eight Circuit pointed out that the TCPA does not expressly permit a  reduction of damages.  Rather, the TCPA provides for monetary damages “up to $500” per violation thereof.  However, the court held that damages may still be reduced if they are  unconstitutional.  Thus, the Eighth Circuit held that statutory damages of over $1.6 billion violate the constitutional due process considerations, as they would be “so severe and oppressive [as] to be wholly disproportioned to the offense and obviously unreasonable.”

The court also held that “to be held directly liable, the defendant must be the one who ‘initiates’ the call. . . . TCPA liability in this context generally does not extend to sellers who do not personally make the phone calls at issue, but only includes the telemarketers acting on behalf of those sellers.”

Read the opinion, here.

Experienced FTC attorneys can assist digital marketers with avoiding related violations, including unfair or deceptive acts or practices under the Federal Trade Commission Act.

Richard B. Newman is an FTC CID attorney at Hinch Newman LLP.  Follow him on Twitter @ FTC Attorneys.

Informational purposes only. Not legal advice. Attorney advertising.

Related posts:

  1. Federal Court Holds TCPA Plaintiff Did Not Adequately Allege ATDS In Bader v. Navient Solutions, LLC (N.D. Ill. June 14,...
  2. Telephone Consumer Protection Act Update – TCPA FCC Commissioner Delivers Pro-Telemarketer TCPA Speech – May 2019 FCC...
  3. Individualized Issues of Consent Result in TCPA Class Action Certification Denial Class actions are designed to promote the efficiency of litigation...
  4. Senators Propose Internet Privacy Bill That Threatens Digital Advertising Earlier this month, Senators Richard Blumenthal and Ed Markey (D-MA)...

Filed Under: Blue Book, Revenue, Revenue Blog Tagged With: Ftc attorney, FTC Compliance, TCPA, Telephone Consumer Protection Act

Search

ROS Col 2 Top

ROS Col 2 Mid

ROS Col 2 Low

Subscribe to our newsletter!

* indicates required

ROS Col 2 – 4 Misc

ROS Col 2 – 5 Misc

ROS Col 2 – 6 Misc

Recent Posts

  • How MyLead works, and what sets it apart from other affiliate networks?
  • You Can Build Successful Lead Partnerships! Here Are 5 Questions To Get You Started
  • How To Build Long-Term Partnerships For Success
  • Interview with Rakuten Advertising’s Managing Director of North America, Anthony Capano
  • How To Source, Vet & Grow Quality Publisher Partnerships For Pay-Per-Call
  • FTC Settlement With Credit Karma Underscores Agency Attention to A/B Testing
  • Rakuten Advertising named mThink’s Best Affiliate Network for 12 Consecutive Years
  • 2023: Challenges, Opportunities & Predictions
  • Top 4 Best Practices For Consumer Finance Campaigns
  • Four Moments That Changed Performance Marketing Forever
  • New additions, improvements, and added perks from your favorite CPA network
  • Your Top 5 Affiliate Marketing Questions Answered
  • 5 strategies to create better content
  • FCC Says Ringless Voicemails Require Prior Consent
  • Top 5 Free Methods to Increase Affiliate Traffic

About mThink

mThink is a specialist digital marketing company based in San Francisco. We focus on media buying, Facebook marketing, direct response, social and mobile. In addition mThink produces the annual Blue Book Rankings of major performance marketing networks. Read More »

Baseboard

Copyright ©2023 · mThink. All rights reserved.
3053 Fillmore Street, Suite 325 | (415) 787-0250
Disclaimer | Privacy Policy