States’ Copycat TCPA Statutes: Double Dipped Damages and Attorneys’ Fees
In Boger v. Trinity Heating & Air, Inc., a court in the District of Maryland permitted Boger to bring simultaneous claims under the Maryland Telephone Consumer Protection Act (MTCPA) and the federal Telephone Consumer Protection Act (TCPA), opening the door for Boger to recover attorneys’ fees and possibly damages under both statutes. The relatively brief opinion focused on whether the MTCPA provides a standalone cause of action or merely permits litigants to bring TCPA claims in Maryland state courts.
In answering that question, the court looked to a quirky portion of the TCPA’s history. As written, the private right of action under Section 227(b)(3) of the TCPA references bringing claims in state courts. As such, many U.S. Circuit Courts of Appeals, including the Fourth Circuit, originally held that state courts were the sole forum for TCPA matters. That dispute ended in 2012 when the U.S. Supreme Court found that federal court have federal question jurisdiction over private TCPA suits in Mims v. Arrow Fin. Serv., LLC.
Maryland’s legislature further clarified whether plaintiffs could file TCPA suits in its courts by enacting the MTCPA, which equated violations of the TCPA with prohibited unfair or deceptive trade practices under Maryland law and—key here—permitted the recovery of actual or statutory damages and attorneys’ fees. One question that remained unanswered post-Mims was whether the MTCPA served as a mere enabling statute, opening state courts to TCPA litigants in Maryland, or whether it created a private standalone right that could give rise to damages for the same conduct as the TCPA. The Boger court found that the MTCPA does in fact create a private right of action but specifically left unanswered whether Boger would be able to seek damages for the same conduct under two statutes, noting, however, that “[a]t least one judge in this District has expressed doubt that plaintiffs may recover statutory damages under both the TCPA and MTCPA for the same violations.”
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.