4th Circuit Affirms Class Action Damages Award of over $61M for TCPA Violations

On May 30, 2019, the U.S. Court of Appeals for the Fourth Circuit affirmed a jury verdict and an aggregate damages award of $61,243,800, against a television provider for its agent’s violations of the Telephone Consumer Protection Act (TCPA).

In the underlying case, a consumer brought a class action against a television provider because the television provider’s alleged agent violated the TCPA.  After reviewing the evidence, the jury sided with the class of consumers.  Additionally, the district court found that due to the willful nature of the violations, the damages should be trebled.  The television provider subsequently appealed.  

The Fourth Circuit found that the district court properly applied the law and prudently exercised its discretion.  Specifically, the Fourth Circuit found that the TCPA’s private right of action plainly satisfies the standing requirements of Article III because to bring suit, the plaintiffs must have received unwanted calls on multiple occasions to residential numbers listed on the Do-Not-Call registry.  The Fourth Circuit reasoned that since the harm is both particular to each person and imposes a concrete burden on the person’s privacy, it was sufficient to confer standing.

The Fourth Circuit also reviewed the district court’s class certification under Rule 23 and found that a “plaintiff suing under § 227(c)(5) is likely to be in the same position as a great many other people and can rely largely on common proof to make out his claim.”  In particular, the court reasoned that the TCPA’s allowance of a private right of action was conducive to class-wide adjudication because, in this case, it requires a plaintiff to initially show that the call was made to a phone number that was on the Do-Not-Call registry and that two calls were made to the number in a one-year period.  Additionally, the court found that the class members were ascertainable because the records in the case clearly showed names and addresses of the consumers as well as when calls were placed and whether the call went through.

The television provider also argued that the TCPA’s private cause of action for violations of the Do-Not-Call registry may only be brought by telephone “subscribers,” but the Fourth Circuit found that there was no basis for imposing such a limit.  The court reasoned that “a non-subscriber who receives a call can suffer a privacy intrusion just as easily as a subscriber can.”

Additionally, the television provider argued that the contract with the entity that made the calls explicitly precluded an agency relationship.  The Fourth Circuit, however, affirmed the jury’s finding of an agency relationship and explained that the parties may not avoid the legal obligations of agency by simply contracting out of them. 

Finally, the Fourth Circuit affirmed the district court’s decision to treble the jury’s damages award because the television provider satisfied the “willful and knowing” standard.  The Fourth Circuit found that the trial court catalogued all of the lawsuits and enforcement actions brought against the television provider for its telemarketing activities and found that the television provider did nothing to monitor its agent’s compliance with the TCPA or to enforce its agent’s compliance with the TCPA.  Therefore, the Fourth Circuit agreed with the district court that the television provider acted with “willful ignorance” as a cursory investigation or monitoring effort by the television provider would have uncovered the tens of thousands of calls that violated the TCPA.