Telephone Consumer Protection Act (TCPA)
Clear legal guidance
The Telephone Consumer Protection Act ("TCPA") was enacted in 1991 to address an increase in telephone marketing calls and certain telemarketing practices that were considered an invasion of privacy. Today, the TCPA has become a trap for the unwary, as it has been interpreted to include within its reach telephone calls beyond the scope of the telemarketing calls it was intended to address and is otherwise subject to shifting interpretations. Most significantly, the TCPA imposes harsh penalties, especially in the context of class action claims.
FMG has substantial experience in defending TCPA claims raised against a variety of entities, including for-profit and non-profit organizations. FMG also has significant experience defending putative class action claims brought pursuant to the TCPA.
Our professionals closely monitor developments in interpretation of the TCPA, including rulings issued and updated by the Federal Communications Commission, and advise clients of these developments.
Successes
Paul Piantino and Christopher Donnelly obtained a reversal and remand resulting from their Appeal of a Final Judgment entered by a Bergen County Trial Court. The case arose out of an underlying action in the United States District Court for the Northern District of West Virginia. The Underlying Plaintiff alleged that the Client violated the Telephone Consumer Protection Act and the West Virginia Consumer Credit and Protection Act due to calls that were allegedly made to Plaintiff, who was on the National Do Not Call Registry.
Initially, the Underlying Plaintiff and the Client communicated with each other to explore settlement. However, when early settlement failed, the Underlying Plaintiff attempted to serve the Client at a different, defunct address, and all future communications and documents from the West Virginia District Court and the Underlying Plaintiff were sent to that old address. As a result, the Underlying Plaintiff was able to obtain an Order for Summary Judgment and eventually a judgment against the, at the time, pro se Client in the West Virginia District Court.
The Underlying Plaintiff then assigned the judgment to a Judgment Creditor, who recorded the foreign judgment in New Jersey where Client resided. Upon notice of this foreign judgment, the Client retained the services of FMG and we filed a motion in New Jersey state court to vacate the foreign judgment arguing that the judgment was not entitled to full faith and credit in New Jersey due to numerous procedural due process issues. The Trial Court denied the motion to vacate. A motion for reconsideration was also filed but denied shortly thereafter.
On Appeal, Mr. Piantino and Mr. Donnelly argued that the Trial Court erred in its denial of the Client’s motions as service of process in the West Virginia District Court action was insufficient and that their, at the time, pro se Client was denied adequate notice and an opportunity to be heard. Specifically, we argued that the Client was denied an opportunity to be heard because the Underlying Plaintiff and the West Virginia District Court sent all litigation communications to the Client’s defunct address. Furthermore, The West Virginia District Court issued a Roseboro Notice to the Client which was returned as undeliverable. Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), is a Fourth Circuit Opinion which requires that, before entering summary judgment against a pro se party, the Court must provide the party with fair notice of the requirements of the summary judgment rule. This was evidence that the Client was not informed that they were facing summary judgment, as is the requirement in the West Virginia jurisdiction for all pro se litigants. Thus, the Client was denied adequate notice, an opportunity to be heard, and the judgment was not entitled to full faith and credit in New Jersey. The Appellate Division in New Jersey vacated the Trial Court’s t decision and remanded for further proceedings, holding that the Trial Court failed to sufficiently address our Client’s due process arguments.
Upon receiving the Appellate Division opinion, the Judgment Creditor filed a Warrant to Satisfy Judgment, thereby relieving the Client of all liability under the judgment in both New Jersey and West Virginia.