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 provide an express statute of limitations so the four year federal “catch all” limitations period of four (4) years governs TCPA claims. 28 U.S.C. Section 1658(a) (2017). If the TCPA case is filed in federal court, the limitations period may be tolled during the periods when a prior TCPA class action was pending if the plaintiff was a member of the prior class or potential class.
DOES THE TCPA SPECIFY A STATUTE OF LIMITATIONS PERIOD ?
The TCPA does not specify a statute of limitations. When a federal law does not provide for a statute of limitations, the courts often have to decide whether to apply the federal or the state statutes 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).
The United States Court of Appeals for the Seventh Circuit applied the federal four year catch all limitations period in Sawyer v. Atlas Heating And Sheet Metal Works, Inc. without much discussion. Sawyer v. Atlas Heating And Sheet Metal Works, Inc., 642 F.3d 560 561 (7th Cir. May 26, 2011). Subsequent appellate decisions greatly strengthen the authority for the Sawyer court’s statutory interpretation.
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.
In cases heard in the federal courts in the Eleventh Circuit — Florida, Georgia and Alabama — the courts are required to apply the four year catch all statute of limitations. See Coniglio v. Bank of America, N.A., 638 F. App’x 972, 974 n. 1 (2016) (“The TCPA has a four year statute of limitations”.)
CAN I FILE A TCPA CLASS ACTION MORE THAN FOUR YEARS AFTER THE CALLER VIOLATED THE TCPA?
Statutes of limitations are hardly a “cookie cutter” formula because there are many exceptions. If the TCPA lawsuit is filed in federal court, the statute of limitations my be tolled while a class action is pending. 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. 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.
WHY IS THE TCPA STATUTE OF LIMITATIONS TOLLED BY A CLASS ACTION?
In American Pipe & Const. Co. v.Utah, 414 U.S. 538 (1974), the United States Supreme Court was presented with the question whether a statute of limitations is tolled for members of a class action for the period from initiation of that action until class certification is denied. The Supreme Court was concerned that allowing the statute of limitations to continue to run while a putative class was pending would require potential class members to protect their rights by intervening or even filing individual lawsuits which would undermine the efficiency of the the class action process. American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974). See also, Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983).
The purpose of statutes of limitations is to protect defendants from having to defend themselves against claims which are so old that memories have faded, documents are lost or destroyed, etc. The Supreme Court reasoned that the defendants are obligated to preserve evidence concerning the potential class members’ claims until the trial court denies the named plaintiff’s motion for class certification. But, tolling may apply regardless of whether a motion for class certification where, for example, other plaintiffs’ lawsuits sought class action relief.
The United States Supreme Court ruled that a pending class action tolls the statute of limitations only for plaintiffs who bring their cases on their own behalf (i.e., individual’s lawsuits) and not to any subsequent class actions. China Agritech, Inc. v. Michael H. Resh (June 11, 2018).
WHEN IS THE TCPA STATUTE OF LIMITATIONS TOLLED BY A CLASS ACTION?
How does a court determine when the prior class action ended and, therefore, the length of time the statute of limitations should be tolled after the filing of the prior case?
Each federal circuit court of appeals has its own more or less unique interpretation of American Pipe. For example, “[i]n the Third Circuit, American Pipe controls so long as the prior class action never materialized for reasons ‘unrelated to the appropriateness of the substantive claims for certification’ (e.g., commonality of the claims as distinct from adequacy of the representative or numerousity).” City Select Auto Sales, Inc. v. David Randall Assocs., Inc. (D. N.J. 2012) citing McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380, 389 (3d Cir. 2002).
This tolling operates to extend the filing deadline for subsequent individual TCPA cases.
HOW DOES THE TCPA STATUTE OF LIMITATIONS EFFECT MY OPTIONS?
Federal law allows cell phone users up to four (4) years after the violation to file their TCPA lawsuit. 28 U.S.C. Section 1658(a) (2017).
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. The plaintiff cell phone user has the burden of proving the number of calls (times, dates and phone numbers are typically required) and, even in “fresh cases” defendants records are often woefully inadequate. Furthermore, many defendants do not save their dialer records for anything close to four years. Unless a defendant maintains adequate records and is complies with the rules of civil procedure and produces complete phone records (which is seldom the case without a discovery war), the wireless carriers’ records usually make the difference between a “he said, she said” trial.
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. Plaintiffs have the burden of proof on most issues and the law sometimes develops in ways which are unfavorable to called parties or valuable TCPA cases get sucked up into defendant-friendly “multi-district litigation (“MDL”) cases where the cell phone user can not even subpoena his or her carrier until the MDL Court allows the plaintiff to opt-out of the class and pursue his or her individualized discovery.
By the time the MDL Court allows potential class members to opt-out, the wireless carrier probably disposed of many of the call details crucial to prove the unanswered calls (including messages) many years ago. Although the cell phone user can mitigate this risk by maintaining thorough call logs and preserving screen shots and messages, the cell phone network’s records carry more weight with a judge or jury.
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