Chicago Business Litigation Lawyer Blog
The complaint usually starts with a text message that looked perfectly ordinary on the way out the door. Your marketing team uploaded a customer list, the platform sent the campaign, and the response rates were strong. Months later a class action lands in the Northern District of Illinois on behalf of every recipient. The demand letter multiplies the number of texts by $500 per call under the Telephone Consumer Protection Act, then helpfully reminds you that the number can become $1,500 each if the conduct was willful, and the total has a comma in places you did not expect.
That math, like the math in most class action demands, is built to look fixed. It is not. In the last five years three different decisions, two of them issued in 2025, have moved the law harder in the defense’s direction than at any point since Congress passed the TCPA in 1991. An Illinois business defending a TCPA case today is operating in a very different statute than the one its adversaries are still describing.
Start with the statute itself. The TCPA, 47 U.S.C. 227, restricts calls and texts made using an automatic telephone dialing system, an artificial or prerecorded voice, and certain marketing to numbers on the federal do-not-call registry. Section 227(b)(3) lets a private plaintiff recover actual damages or $500 per violation, whichever is greater, with treble damages of $1,500 per call available where a court finds a willful or knowing violation. Multiplied across a putative class, the exposure is the entire point of the statute and the entire point of the demand letter.
The first decision that reshaped this landscape is Facebook, Inc. v. Duguid, decided by the United States Supreme Court in April 2021. The Court read the TCPA’s definition of an automatic telephone dialing system, often called an ATDS, in its plain terms. To qualify, a system must use a random or sequential number generator to store or produce the numbers it dials. Equipment that simply dials from a stored list of customer numbers, the workhorse of modern marketing platforms, does not qualify. The Seventh Circuit had already reached the same result a year earlier in Gadelhak v. AT&T Services, Inc., an opinion authored by then-Judge Amy Coney Barrett that the Supreme Court effectively ratified. The practical consequence in Illinois federal court is significant. A great many of the text and call campaigns that anchored the explosion of TCPA class actions a decade ago no longer involve an ATDS at all. The complaint may still allege one. The technology often does not support the allegation. That mismatch is a defense from the pleading stage forward.
The second decision is Insurance Marketing Coalition Ltd. v. FCC, issued by the Eleventh Circuit in January 2025. The court vacated the FCC’s one-to-one consent rule, the rule that would have required telemarketers to obtain consent for a single seller at a time and would have closed the lead-generator pipeline that supports much of the consumer-finance and insurance economies. The Eleventh Circuit held that the agency had exceeded its statutory authority, because the TCPA requires prior express consent, not prior express consent plus a list of additional FCC-imposed conditions. Following the vacatur, the FCC issued an order that effectively shelves the rule. The takeaway for Illinois businesses is direct. The one-to-one consent regime that compliance teams spent eighteen months preparing for is, at least for now, not the law. A complaint that pleads liability premised on a violation of that vacated rule is pleading something that does not exist.
The third and arguably most important decision is McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., decided by the Supreme Court in June 2025. For more than three decades, defendants in TCPA cases had been told that the Hobbs Act required district courts to accept the FCC’s interpretations of the statute, even when those interpretations were aggressive and untethered from the text. McLaughlin ended that regime. The Supreme Court held that the Hobbs Act does not bind district courts in private TCPA enforcement to the FCC’s view of the statute. District courts must now decide the best reading of the TCPA themselves, giving the agency only the respect its reasoning deserves. That is a wholesale reallocation of interpretive power. Every Illinois TCPA defendant now has the ability to challenge an FCC interpretation directly in the trial court, on the merits, rather than being told that the agency has already decided the question and the litigation is over.
Two ancillary points are worth knowing because they affect how a defense unfolds. In 2024 the FCC adopted a rule requiring callers to honor consent revocations made through any reasonable means, and a confirmed revocation followed by additional calls is the cleanest possible record of willful conduct that supports a trebling argument. So consent tracking, including the moment of revocation and the speed of the suppression that follows, is now a litigation issue, not a marketing one. And the Illinois Telephone Solicitations Act, 815 ILCS 413, adds a parallel state regime to the federal one. Plaintiffs sometimes plead it in tandem, and a defense theory needs to address both.
Three things matter in the first ten days of a TCPA case. Lock down the technology, because the platform’s actual dialing architecture, the way it produces or stores the numbers it calls, is the central factual question after Duguid and Gadelhak, and a thirty-minute conversation with the vendor often establishes that the platform is not an ATDS at all. Pull the consent file, because prior express written consent for marketing calls and texts is still the dispositive defense when it exists, and most consent disputes are documentation disputes rather than legal ones. And evaluate the forum, because Article III standing remains a live question in federal TCPA cases under TransUnion v. Ramirez, and the right move is not always to remove the case to federal court and then fight there. Sometimes the strongest play is to let the plaintiff stand on a thin federal injury and watch the case dismissed.
A TCPA complaint is written to make the technology look guilty by association. The new landscape, set by Duguid and Gadelhak on the dialer, by Insurance Marketing Coalition on consent, and by McLaughlin on agency deference, lets defendants test the allegation rather than absorb it. The businesses that win are the ones that recognize the case in front of them is not the one the plaintiffs’ bar was prosecuting in 2018.
At DiTommaso Lubin, P.C., we defend Illinois businesses against TCPA class actions and Illinois Telephone Solicitations Act claims, from the first demand letter through dispositive motions, dialer analysis, removal and remand strategy, and class certification. If your business received a TCPA demand letter or has been sued over text messages, robocalls, or fax communications, the time to evaluate the dialer, the consent file, and the forum is before the answer is due. Call DiTommaso Lubin, P.C. at 630-333-0333 for a free consultation, or contact us online. We can help you measure the real exposure under the TCPA the courts are actually applying today. This post is for general information and is not legal advice.