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. Continue reading ›