On Friday, the Sixth Circuit held in a matter of first impression that claims under TCPA survive the death of the Plaintiff, and may be prosecuted by a successor-in-interest.
In Parchman v. SLM Corp., No. 17-5968, 2018 U.S. App. LEXIS 20194 (6th Cir. Jul. 20, 2018), the District Court had denied leave in a putative TCPA class action to substitute Plaintiff’s daughter for Plaintiff following the Plaintiff’s death. The lower court reasoned that the claims did not survive Plaintiff’s death because the TCPA was “penal in nature,” and in effect a “right of privacy action” which was a “personal right” that may not be assigned, or asserted by a successor-in-interest. Id. at *18.
In evaluating the lower court’s ruling, the Sixth Circuit started with the premise that, absent an expression of Congressional intent (which we don’t have in the TCPA), the question of survivability is to be decided under federal common law. Under the federal common law, “remedial” claims (i.e. those to “compensate the plaintiff”) survive, whereas punitive claims (i.e. “claims to punish the defendant”) do not. In determining whether the TCPA was “remedial” versus “punitive”, the Sixth Circuit examined three factors: (1) whether the purpose of the TCPA was to redress individual wrongs or more general wrongs to the public; (2) whether recovery under the TCPA runs to the harmed individual or to the public; and (3) whether the recovery authorized by the TCPA is wholly disproportionate to the harm suffered. Id. at *19.
The court found the first and second factors supported survivability because the primary purpose of the TCPA was to “protect individuals” from “individual harms” such as “harassment, invasion of privacy, inconvenience, nuisance, and other harms associated with unsolicited automated calls,” and recovery under the statute “runs to the harmed individual and not the public.”
But it’s the court’s analysis of the third factor where things get interesting.
The court found the third factor – disproportionality of damages – “lean[ed] at least in part toward finding that TCPA claims are penal.” This one would seem to be obvious because damages of $500 per call are not just wholly, but wildly disproportionate to the potential harms caused by a call. However, the court wouldn’t say that $500 a call was “wholly disproportionate” to the harm from a TCPA violation because the calls are “irritating” and “invasive” and the harm is “hard to quantify and may vary from person to person.” So if something being “irritating” and “invasive” justifies an award of damages with no moorings to the actual harm suffered then… My kids probably owe me a bunch of money.
The court instead found that the treble damage provision made it “more likely” that damages under the TCPA were disproportionate – and therefore penal – because “it gives the court discretion to increase damages that, at $500 per call, are already greater than actual damages in most cases.” Id. at*23 (italics added). Hold on right there. So the court acknowledges that $500 per call is “greater than actual damages” but that figure somehow is not “wholly disproportionate” to the harm suffered when the TCPA is violated. What’s the difference, and where is the line between damages that are “greater than actual damages” and those that are “wholly disproportionate” to harm suffered? That seems to be an arbitrary distinction.
And yet, the court ultimately concluded on balance that, because the TCPA gives the courts discretion to treble, “[t]his allows the court to evaluate the facts of a particular case and, perhaps, the harm caused to the plaintiff by defendant’s violations in determining the appropriate level of damages,” which makes the TCPA “comparatively more remedial”. So there it is. Although the TCPA authorizes damages that are “greater than” – but somehow not “wholly disproportionate” to the harm suffered – and gives the court discretion to award more than $500 per damages (which is a figure that is already “greater than actual damages”), the TCPA is a “remedial” statute. This is the part I say “because TCPAland”.
As a result of this ruling, the claims of the deceased Plaintiff will keep truckin’ in the lower court. But this still leaves more interesting questions to be resolved, including whether a successor-in-interest who had no direct involvement in, and was otherwise unaffected by the alleged TCPA violations would even make an adequate class representative.