A District Court judge in Maryland has ruled that a plaintiff may bring claims under both the Telephone Consumer Protection Act (TCPA) and the Maryland Telephone Consumer Protection Act (MTCPA), possibly allowing the plaintiff to recover damages and attorney’s fees twice for the same violation.
The judge in this case ruled that the MTCPA does create a private right of action for the plaintiff, but did admit he was uncertain whether that meant the plaintiff would be entitled to double damages.
A copy of the ruling in Dan Boger v. Trinity Heating & Air, Inc., can be accessed by clicking here.
Jonathan Hoffmann, an attorney with Balch & Bingham first wrote about the ruling.
The plaintiff in this case received three telemarketing calls on his cell phone, despite not giving permission to be contacted and having his number on the Do Not Call registry.
The defendants were seeking a motion to dismiss the MTCPA claim, which was denied by Judge Theodore Chuang. The defendants argued that the MTCPA should be considered an enabling statute “that empowers plaintiffs to bring a federal TCPA claim in a Maryland court.”
In examining the differences between the MTCPA and the TCPA, such as different statutes of limitation, the MTCPA allowing the recovery of attorney’s fees, and different damage awards, the judge ruled that there was enough separation to allow both claims to move forward.
From Judge Chuang:
These differences undermine the claim that the MTCPA is not a freestanding cause of action and is nothing more than an enabling statute for bringing TCPA claims in state court. Here, where Boger correctly argues that dismissal of the MTCPA claim would eliminate the only statutory basis for the recovery of attorney’s fees, the Court cannot conclude that dismissal of the MTCPA claim would merely eliminate duplicative claims.
From Hoffmann:
However, the ruling still should give businesses pause. If the MTCPA is a standalone statute, mirroring the TCPA, it means that there is an avenue for plaintiffs to file potentially non-removable TCPA claims (assuming diversity is lacking) that also permit the recovery of attorneys’ fees—something notably lacking under the TCPA (as opposed to its sister consumer protection statutes like the FDCPA or FCRA). Also, the Boger court, while discounting the possibility, has left the door open for double recovery. The takeaway of Boger is that states’ laws mirroring or enhancing federal regulation of the consumer credit industry cannot be overlooked. These state laws can create traps for the unwary, increasing costs and damages, and potentially limiting forum options.
