WHAT IS THE STATUTE OF LIMITATIONS FOR A TCPA LAWSUIT?
A statute of limitations is the period of time from the date of the violation to the deadline for filing a lawsuit or the lawsuit will be time barred. “Time barred” is another way of saying that the statute of limitations has expired.
The TCPA does not specify a statute of limitations. For many years, courts applied the statute of limitations of the state where the case was filed. This practice arose because the TCPA provides “[a] person or entity may, if otherwise permitted by the law or rules of court of a State, bring an action in an appropriate court of that State ***.” 47 U.S.C. Section 227(b)(3).
On January 18, 2012, the United States Supreme Court issued its decision in Mimms v. Arrow Financial Services, LLC, which held that defendants can remove (i.e., transfer) a TCPA case from state court to a federal trial court regardless of the amount in controversy and that the federal court has jurisdiction to hear the case. Mimms v. Arrow Fin. Servs, LLC, 565 U.S. 740, 132 S.Ct. 740, 181 L. Ed. 2D 88 (SCOTUS 2012). Although the Supreme Court’s decision in Mimms did not address the applicable statute of limitations, it undercut the grounds for borrowing the state’s statutes of limitations. After Mimms, federal courts apply the four-year federal “catch all” statute of limitations period set forth in the United States Code. The United States Court of Appeals for the Second Circuit relied on the logic in Mimms to apply the federal four year catch all limitations period in Giovanniello v. ALM Media, 726 F.3d 106 (2ND Cir. Aug. 8, 2013) and in Bank v. Independence Energy, 726 F.3d 760 (2nd Cir. Dec. 3,2013).
The federal “catch all” statute of limitations provides that :
except as otherwise provided by law, a civil action under an Act of Congress enacted after the date of enactment of this section may not be commenced later than 4 years after the cause of action accrues.”
28 U.S.C. Section 1658(a) (2017). Congress enacted this statute of limitations on December 1, 1990, a full year before Congress enacted the TCPA on December 20, 1991, so this statute of limitations applies to TCPA claims.
Statutes of limitations are hardly a “cookie cutter” formula because there are many exceptions.
For example, federal courts have ruled that statutes of limitations are tolled while a class action is pending at least where the second case filed is an individual case. Tolled means that the 4 year “shot clock” is turned “off” beginning on the date the class action was filed until the court denies or grants class certification.
But tolling may not be available for a second class action especially a class action brought by the same plaintiff seeking to represent the class or the first class action was maintained in a state court. Tolling the statute of limitations requires applying complex legal “fine points” which often vary by federal circuit so I highly recommend consulting with an experienced TCPA attorney for advice if you may benefit from tolling.
The important take away is that, with the growth in the number of TCPA class actions, many individual’s TCPA cases may be tolled because of this exception. In many cases, this tolling theory can substantially expand the number of days or years available and enhance the amount recovered.
But why would a called party who knows about the TCPA wait four years to file a case? As a general rule, I would not recommend it. The purpose of a statute of limitations is to avoid claims which are so old that evidence gets destroyed and memories fade. Wireless providers are not required to retain records for four years. Some wireless providers save critical call information for one year but many do not even save such information that long. Furthermore, no law or regulation requires fax blasters or debt collectors to maintain call logs like they must maintain payroll records, tax records, etc.
Plaintiffs have the burden of proof on most issues and the law sometimes develops in ways which are unfavorable to called parties.
If you believe you have TCPA claims that may be worth pursuing, you are welcome to contact Mr. Petersen to discuss your rights, the call history, how to preserve the evidence of the caller’s violations, and answer any questions you have about TCPA cases.
CALL DONALD E. PETERSEN AT 407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
(C) Donald E. Petersen 2017 – 2018