As a partner at Locke Lord in 2013, Martin Jaszczuk was one of the first Am Law 100 lawyers to lead a practice defending the flood of corporations accused of violating the U.S. Telephone Consumer Protection Act.
Since starting his own firm in January, Jaszczuk is faced with the prospect of that torrent of litigation turning into a trickle. And so he now faces the question: What comes next?
Claims under the TCPA in federal court swelled from less than 100 in 2009 to 4,860 filed last year, according to WebRecon, a website that tracks such filings. Jaszczuk rode that litigation wave for years at Locke Lord, leading a practice that grew to about 20 lawyers defending companies such as Geico Corp., Humana Inc. and McDonald’s Corp., as well as President Donald Trump’s election campaign.
Trump’s election victory could now provide some headwinds for Jaszczuk’s young firm and for the Big Law lawyers whose timesheets have been filled by a lucrative TCPA practice.
Lawyers in the TCPA arena are waiting to see if the business-friendly president and a Republican-led Federal Communications Commission will seek to blunt TCPA class actions, which have led to settlements of up to $76 million as recently as December. (Ever received a phone call saying you’ve won a free cruise?)
Practitioners are also anticipating a ruling from the U.S. Court of Appeals for the D.C. Circuit, which heard two-and-a-half hours of oral arguments last October in a case that challenged an FCC order from 2015 extending the reach of the TCPA.
“The decision could come down any day and there will be a lot of interest and a lot of reaction to that when it happens,” said Reed Smith partner Travis Sabalewski, who along with dozens of other lawyers at his firm regularly works on TCPA cases.
Jaszczuk said he is already planning for the day when TCPA litigation will no longer take up all his time. Toward that end, his new firm, initially comprised of five Locke Lord defectors, added a sixth last week in Daniel Schlessinger, a former chairman of Locke Lord predecessor firm Lord, Bissell & Brook.
Schlessinger, a well-known litigator who has chaired Locke Lord’s hiring committee, is a key part of Jaszczuk’s plan to diversify his firm, Jaszczuk P.C., into a full service shop. Schlessinger said he would play a large role in recruiting lawyers to the firm and was excited to grow the firm’s capabilities.
“I have no concerns about [TCPA litigation slowing down], because the idea was for us to open our firm currently based on the TCPA practice but to convert to doing other litigation, corporate, commercial and real estate type work for clients who have gotten to know us through our TCPA defense,” Jaszczuk said.
Last year was the biggest in what has been a banner five-year period for TCPA claims. Claims in federal court grew 25 percent from 2015, according to WebRecon. While Reed Smith and Locke Lord were initial pioneers in marketing TCPA practices, almost any major firm today has such a group. Those firms include Drinker Biddle & Reath, Hinshaw & Culbertson and Nixon Peabody, among many more.
Many of those lawyers wrote amicus briefs in the appeal of the 2015 FCC order, which among other things expanded the definition of an automated telephone dialing system that can’t be used to make unauthorized calls or texts to consumers.
Defense lawyers now have a powerful new ally on their side. In a dissenting opinion, former Jenner & Block partner Ajit Pai, now chairman of the FCC, wrote that the 2015 order was “sure to spark endless litigation, to the detriment of consumers and the legitimate businesses that want to communicate with them.”
David Schultz, a Hinshaw & Culbertson partner who has represented major corporations in TCPA class actions, said it may be too soon to say whether the Trump administration will cause such suits to fall off.
“It’s a reasonable expectation that based on who’s now the chairman and given the likely makeup of the commission that they’d probably take a more restrictive view of the TCPA than previously,” he said.
Jaszczuk said he expects the litigation will someday go away, and he’s not waiting until it does to diversify his practice.
“There will come a time when the courts will start recognizing that it makes no sense to award millions of dollars in damages to a class action plaintiff where nobody died, nobody was maimed, but a whole bunch of people were slightly annoyed that their phone rang,” Jaszczuk said.
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