The rise of Telephone Consumer Protection Act litigation in the past decade has been staggering. From just 14 cases in 2007, the number of TCPA-related filings has exploded to 4,860 in 2016 — a total that is expected to exceed 5,000 in 2017. Facing this wave of litigation, counsel representing TCPA defendants have seized on language in a recent Supreme Court case — Spokeo v. Robins — to obtain the dismissal of cases before they ever reach the question of class certification. In a recent decision with important implications, the Ninth Circuit Court of Appeals questioned the viability of Spokeo arguments against TCPA actions but opened the door to defenses based on consent and waiver revocation. Van Patten v. Vertical Fitness Group LLC No. 14-55980, 2017 U.S. App. LEXIS 1591 (9th Cir. Cal. Jan. 30, 2017). Ultimately, the Spokeo defense remains an intriguing — if unsettled — means of attacking TCPA claims filed in federal court.

Originally published by Law360, New York - February 21, 2017.