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TCPA Behind the Numbers: Overall TCPA Filings are Down, But is that the Whole Story?

 

TCPA filings are down significantly YTD for the second year in a row. So why doesn’t it feel that way? Read on to learn our theory below.

First, the numbers. According to data available from Webrecon.com–which notably departs quite a bit from our daily counts–   TCPA filings through the end of May, 2018 are down a whopping 17.7% with 1,696 cases filed so far this year compared to 2,062 cases through May 2017. That sounds pretty good.

Zooming in on May, 2018 alone, however, matters are even more stark with filings at 410 cases, down 19% from May, 2017 when there were 506 cases filed. Wow, that sounds like real relief.

But wait a second. For some reason class action TCPA filings are not declining at the same pace. Indeed, TCPA class action filings are actually up this year over last. There were 113 TCPA class actions filed in May, 2018 compared to only 68 class actions in May, 2017–that’s a huge 66% increase from May last year.

Looking at a single month of filings isn’t necessarily informative of the overall picture, so let’s zoom out a bit. Looking at 2018 YTD vs 2017 YTD we still see a meaningful INCREASE in TCPA class action filings– 390 class actions have been filed YTD 2018 compared to 364 through May, 2017. That is an increase of 7% over last year. Zooming out even further, we see that TCPA class action filings through May have been pretty steady over the last 3 years after exploding following the FCC’s TCPA Omnibus ruling in July, 2015:

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What do we make of these numbers? Well obviously the large increase in class action filings from 2015 to 2016 is due to the FCC’s TCPA Omnibus ruling.

But what about the large decrease in individual TCPA filings this year vs. the stable or increasing number of class actions?

While the prevailing theory is that filings are lower owing to uncertainty following ACA, Int’l and perhaps even a sense that the TCPA is going out of vogue that doesn’t explain why class action filings would increase while individual filings are decreasing. Indeed, if that theory were true we’d expect to see a bigger reduction in class filings since they require more investment and resources and would, therefore, be less appealing to consumer counsel in an era of increasing uncertainty or blasé.

The fact that class action filings are increasing while individual filings are decreasing suggests that something else is likely at work here–efficiency. Owing to the increasing experience of practitioners on both sides of the “v”  large number of TCPA claims are now being resolved via pre-suit demand letters. Plus most consumer lawyers have given up fighting arbitration in these cases–although Gamble may change that–  resulting in a large number of arbitrations being directly initiated in AAA rather than starting out in federal court as would have occurred in years past. These two phenomenon–coupled with the successful efforts of this firm and others in challenging manufactured lawsuits and scam app manufacturers– likely account for the steady decline in individual federal court TCPA filings over the last two years. Yet class actions can not be resolved via informal demand letter (usually) and will never be directly initiated in AAA. So those numbers increase while overall individual filings decrease. But the total number of TCPA claims being pursued–whether through informal demand letters, arbitration, or federal court–is likely higher today than ever before. Viola!–the mystery is solved. Maybe.

Whatever is behind the “decline” in TCPA filings, however, the TCPA class action–and its threat of billions in potential exposure against American businesses doing nothing more than contacting their customers– certainly remains alive and well. Blame the Godfather.

 

 

 

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