Can you sue for a call you never answered under the TCPA?

Kind of a “tree falls in the forest” sort of question.

Turns out, you can! At least according to the Ninth Circuit in a new case brought by repeat-litigator Nathaniel Barton.

Per the Court:

“Whether the call was answered is irrelevant under the regulation. The district court therefore erred in declining to award damages for the two calls Barton failed to answer. We remand for the district court to calculate in the first instance the appropriate damages for those two unanswered calls.”

Gross and terrible. But, those are the breaks.

I’ll note the case was unpublished and the defaulted defendant didn’t have much of a chance to make an argument. So, I’m not sure how valuable this will be ultimately.

Still, its another headache for TCPAworld denizens. And, as Mike Greenwald reminded me, this case could have a HUGE impact at the certification stage.

The case is Barton v. JMS Associate Marketing, No. 21-35836, 2023 WL 2009925 (9th Cir. Feb. 15, 2023).

Happy Friday friends!