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In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) to ban certain types of unsolicited phone calls, text messages, and faxes. The law provides for statutory damages of $500 per violation, or as much as $1,500 per “willful” violation. Recently, the plaintiff’s bar has seized on the TCPA to file putative class actions seeking massive statutory damages. As a result, many TCPA class actions have settled for tens of millions of dollars. See, e.g., In re Capital One Telephone Consumer Protection Act, 80 F. Supp. 3d 781, 787 (N.D. Ill. 2015) ($75.5 million). And the pace of TCPA class action filings is only increasing. Between 2010 and 2016, the number of filings increased by more than 1,200 percent. New York, in particular, has seen an uptick in TCPA class actions since the Second Circuit affirmatively held that New York Civil Practice Law and Rules §901(b) does not bar TCPA class actions in New York federal courts. Bank v. Independent Energy Grp., 736 F.3d 660, 661 (2d Cir. 2013).

For companies facing TCPA class actions, however, hope is not lost. In addition to the powerful strategies that are available for obtaining dismissal on the pleadings or negotiating early settlements (which are beyond the scope of this article), companies have an arsenal of strategies they can deploy to defeat class certification. Most frequently, defendants have defeated class certification by establishing that individualized issues predominate over common issues, including issues regarding consent, standing, ascertainability, and manageability. Defendants have also defeated certification by demonstrating that the plaintiff is atypical or inadequate or that a class action would not be superior based on disproportionate damages.

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