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CFPB’s FCRA Preemption Whiplash
What State-Law Claims Survive After the Latest Reversal?
12/23/25- When Interpretive Rules Become Litigation Weapons. The Consumer Financial Protection Bureau’s most recent shift on Fair Credit Reporting Act (“FCRA”) preemption has re-ignited a long-running and deeply consequential debate: how much room, if any, remains for state consumer protection laws in the credit reporting arena. After issuing an expansive interpretive rule in October emphasizing narrow preemption, withdrawing that guidance in May, and now advan/cing a new interpretation emphasizing broad federal preemption, the CFPB has left courts and litigants navigating a fractured and unstable doctrinal landscape.
This regulatory whiplash arrives at a critical moment. Courts are divided, pleading strategies are in flux, and motions to dismiss increasingly turn on whether state-law “add-ons” survive FCRA preemption. The CFPB’s latest position will be cited aggressively—particularly by defendants—but its ultimate influence remains uncertain.
The Statutory Fault Line: FCRA Preemption by Design
FCRA preemption has always been complex by statute. Section 1681t(b)(1) expressly preempts certain state laws relating to the responsibilities of furnishers, consumer reporting agencies, and users of consumer reports. At the same time, other provisions—most notably § 1681h(e)—appear to preserve limited state-law claims involving malice or willful misconduct.
Courts have long struggled to reconcile these provisions, resulting in multiple interpretive frameworks:
- Total preemption approaches
- Temporal approaches
- Statutory overlap analyses
Into this already fractured doctrine, the CFPB has repeatedly injected—and withdrawn—its interpretive authority.
The October Rule: Narrow Preemption, Broader State Authority
In October, the CFPB issued an interpretive rule asserting that FCRA preemption should be read narrowly, allowing state laws to operate unless they imposed requirements squarely within the enumerated preempted categories. The rule emphasized that Congress did not intend to displace broad swaths of state consumer protection law merely because those laws “touch” credit reporting.
That interpretation emboldened plaintiffs to continue pleading state-law claims alongside FCRA causes of action, including:
- State unfair and deceptive acts statutes
- Negligence and misrepresentation claim
- State credit and consumer protection acts
For a brief period, the CFPB appeared to be signaling regulatory support for a federal floor, not a ceiling, approach to consumer protection.
The May Withdrawal and the New Interpretation
In May, the CFPB abruptly withdrew its prior interpretation and replaced it with guidance emphasizing that the FCRA broadly preempts state laws that regulate core aspects of credit reporting. Under this new framework, state laws are far more vulnerable to preemption challenges—even when styled as general consumer protection statutes rather than credit-specific regulations.
The shift represents more than a technical adjustment. It reorients the Bureau toward a position that:
- Expands the practical reach of § 1681t(b)(1)
- Narrows the space for parallel state remedies
- Strengthens preemption arguments at the pleading stage
For defendants, this guidance arrives as a powerful litigation tool. For plaintiffs, it raises hard questions about which claims remain viable and how to plead them.
Immediate Litigation Consequences
A. Pleading Strategy Is Under Pressure
Plaintiffs’ counsel are now forced to reassess whether traditional state-law claims survive dismissal, particularly where those claims rely on duties arguably “covered” by the FCRA. Boilerplate state-law add-ons are increasingly risky.
B. Motions to Dismiss Will Cite CFPB Guidance Heavily
Although interpretive rules lack the force of formal regulations, defendants will cite the CFPB’s position as persuasive authority—especially in jurisdictions already inclined toward broad preemption.
C. Judicial Skepticism Remains
Importantly, courts are not bound by the CFPB’s interpretive reversals. Several courts have already expressed skepticism toward agency attempts to resolve statutory ambiguity through guidance rather than rulemaking. The CFPB’s credibility may be weakened by the speed and frequency of its reversals.
Is the CFPB Quietly Shrinking State Consumer Protections?
Whether intentional or not, the practical effect of the CFPB’s latest interpretation is to contract the role of state law in consumer credit reporting disputes. This is particularly significant in jurisdictions where state consumer protection statutes have historically provided broader remedies than the FCRA itself.
The irony is difficult to ignore: an agency created to protect consumers may now be advancing a framework that limits their remedial options—at least in litigation.
What Still Survives?
Despite the CFPB’s new stance, not all state-law claims are necessarily preempted. Claims may still survive where they:
- Impose duties independent of credit reporting accuracy or dispute handling
- Involve conduct outside the enumerated FCRA provisions
- Allege malice or willfulness under § 1681h(e)
- Arise under state laws regulating conduct rather than reporting mechanics
But the margin for error has narrowed, and courts will be scrutinizing these distinctions closely.
CONCLUSION
The CFPB’s latest reversal on FCRA preemption adds uncertainty to an already unsettled area of law. While defendants will seize on the new interpretation to challenge state-law claims, courts remain the ultimate arbiters—and many are wary of regulatory whiplash masquerading as statutory clarity.
For practitioners, the message is clear: state-law claims can no longer be treated as routine appendages to FCRA pleadings. They must be carefully justified, precisely pled, and strategically defended. The next phase of FCRA litigation will be shaped not just by statutory text and Supreme Court precedent, but by how courts respond to an agency that cannot seem to decide how much consumer protection is too much.
Practitioner Guidance for Plaintiff’s Counsel: Navigating FCRA Preemption After the CFPB’s Latest Reversal How to Plead State-Law Claims That Still Survive
The CFPB’s most recent reversal on Fair Credit Reporting Act (“FCRA”) preemption has materially changed the risk calculus for plaintiff-side consumer litigators. With the Bureau now emphasizing broad federal preemption of state laws touching credit reporting, defendants are already citing the new interpretation in motions to dismiss—often as a threshold argument aimed at eliminating state-law claims at the outset.
For plaintiffs’ attorneys, the question is no longer whether to plead state-law claims alongside FCRA counts, but how to do so in a way that survives preemption challenges in a post-whiplash environment.
I. Stop Treating State Claims as Boilerplate Add-Ons
The era of reflexively appending state consumer protection claims to every FCRA complaint is over—at least for now. Courts will scrutinize whether a state-law claim imposes duties “with respect to” subject matter already regulated by the FCRA.
Practice Tip: Before pleading a state claim, identify the precise duty it enforces and ask:
- Is this duty independent of credit reporting accuracy, disputes, or reinvestigation?
- Does it regulate conduct rather than reporting mechanics?
- Could the claim exist even if no consumer report had been issued?
If the answer is no, expect a preemption challenge.
II. Anchor State Claims to Independent Conduct
State-law claims are most defensible when they target conduct collateral to credit reporting, not the reporting itself.
More likely to survive:
- Deceptive business practices unrelated to report accuracy
- Misrepresentations made directly to consumer
- Improper collection activity triggered by, but not governed by, a consumer repor
- Contractual breaches and settlement violations
More vulnerable:
- Claims duplicating FCRA dispute or accuracy obligation
- State-law negligence theories premised on reporting error
- Claims seeking to regulate reinvestigation procedures
Practice Tip: Draft factual allegations so the state claim stands on its own, even if the FCRA count is dismissed.
III. Plead Malice and Willfulness Where Available
Section 1681h(e) remains a critical—though narrow—exception to preemption for certain state-law claims involving malice or willful intent.
Practice Tip: Where supported by facts:
- Plead actual malice, not conclusory inten
- Identify internal policies ignored or overridde
- Tie willfulness to specific acts (e.g., knowingly reporting false information)
Courts are far more receptive when allegations demonstrate intentional misconduct rather than procedural error.
IV. Separate Duties, Separate Counts
One of the most common plaintiff-side mistakes is commingling state-law and FCRA duties in the same factual narrative. This invites preemption dismissal.
Practice Tip:
- Plead FCRA claims and state-law claims in clearly distinct section
- Use separate duty analyse
- Avoid incorporating FCRA statutory language into state-law counts
The clearer the separation, the harder it is for defendants to argue overlap-based preemption.
V. Anticipate the Motion to Dismiss—and Plead Around It
Defendants will cite the CFPB’s latest interpretation as persuasive authority. Plaintiffs should assume preemption arguments are coming and preempt them in the complaint.
Practice Tip: Include allegations explaining:
- Why the state law regulates conduct beyond credit reporting
- How the claim fits outside §1681t(b)(1)’s enumerated categories
- Why the claim does not impose “requirements or prohibitions” covered by the FCRA
Judges are more receptive when plaintiffs show they understand the preemption framework rather than ignoring it.
VI. Preserve State Claims Strategically
In jurisdictions hostile to state-law add-ons, plaintiffs may consider:
- Pleading state claims in the alternativ
- Narrowing remedies rather than abandoning claim
- Preserving state-law theories for enforcement or settlement contexts
Practice Tip: Remember that even where federal courts dismiss state-law claims, state courts may still enforce related contractual or statutory rights.
VII. Watch the Courts, Not Just the CFPB
The CFPB’s interpretive guidance is not binding, and courts remain divided. Some judges have already expressed skepticism toward agency reversals that lack notice-and-comment rulemaking.
Practice Tip: Track:
- District-level rulings in your circui
- Judges’ prior treatment of FCRA preemption
- Whether courts treat the CFPB guidance as persuasive or disregard it entirely
The judicial response—not the agency’s position—will ultimately determine survivability.
Conclusion: Precision Over Volume
The CFPB’s FCRA preemption whiplash does not eliminate state-law claims—but it does demand discipline, precision, and intentional pleading.
Plaintiffs’ attorneys who adapt their strategies now—by grounding state claims in independent conduct and clearly separating them from FCRA duties—will be best positioned to survive early dismissal and maintain leverage.
Background
Summary of Proposed Changes
Summary of Proposed Changes
The Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) prohibits creditors from discriminating on the basis of:
- race,
- color,
- national origin,
- sex,
- religion
- marital status,
- age (if able to contract),
- the receipt of public assistance, and
- the exercise of rights under consumer-credit laws.
Regulation B, issued by the CFPB, implements ECOA. The CFPB’s November 13, 2025 proposed rule would amend Regulation B in multiple significant ways — most notably by removing disparate-impact liability, limiting the "discouragement" provision, and restricting certain special credit programs.
Summary of Proposed Changes
Summary of Proposed Changes
Summary of Proposed Changes
1. Ending Disparate-Impact Liability Under ECOA
Under existing interpretations, a lender can violate ECOA if a neutral policy disproportionately harms a protected class — even without discriminatory intent. This is called disparate impact. The CFPB proposes eliminating this standard. Under the new approach, only intentional discrimination (disparate treatment) would be actionable. Neutral policies that statistically harm certain groups would no longer violate ECOA unless intent is proven. This is a profound shift. It would significantly narrow the types of discrimination claims consumers can bring under Regulation B.
2. Narrowing the “Discouragement” Rule
Regulation B currently prohibits creditors from making any statement that would discourage someone from applying for credit based on a protected characteristic. The CFPB wants to narrow this definition. The proposal would:
- limit what qualifies as a prohibited statement,
- clarify what types of marketing do or do not constitute discouragement, and
- adopt a “knows or should know” standard — but in a narrower context than before
This would reduce lenders’ exposure and make discouragement claims more difficult to prove.
3. Restricting Special Purpose Credit Programs (SPCPs)
Special Purpose Credit Programs allow creditors to offer targeted assistance to disadvantaged groups who might otherwise struggle to receive reasonable credit terms. The proposed rule would restrict how for-profit lenders can structure these programs. Notably:
- They may not use race, color, national origin, or sex as eligibility criteria, an
- Other protected-basis eligibility criteria would require substantial documentation and justification
This could significantly limit programs designed to remedy historical inequality in access to credit — at least those offered by for-profit institutions.
Implications for Lenders and Attorneys
For Lenders
- Less regulatory exposure for neutral policies with unequal effects.
- More clarity — and narrower risk — around discouragement violations.
- Significant restructuring needed for special-purpose credit programs.
For Consumer Attorneys
- Fewer ECOA claims based on statistical disparity.
- More reliance on intentional-discrimination theories.
- Increased importance of state-law claims.
- Need to monitor lender policy changes and marketing practices closely.
Areas to Watch
- Legal challenges to the CFPB’s removal of disparate-impact liability
- State legislative responses
- Shifts in lender underwriting standards
- Declines (or redesigns) in special credit programs
- Fair-lending enforcement trends
Conclusion
The CFPB’s proposed amendments to Regulation B would significantly reshape fair-lending enforcement in the United States. By eliminating disparate-impact liability, narrowing the discouragement rule, and restricting certain special-purpose credit programs, the changes would alter both how lenders operate and how consumers experience the credit market.
For consumers, these changes likely mean fewer protections against subtle discrimination and fewer targeted credit programs designed to increase access. For attorneys and lenders, they signal a major shift in compliance obligations and litigation strategy.
Staying informed — and preparing now — will be essential for protecting consumers and ensuring fair, equitable access to credit in the years ahead.
Standing with the Philippines
How We’re Helping Cebu and Families in Need
11/11/25 - The Philippines is one of the most disaster-prone countries in the world. Every year, dozens of typhoons and floods tear through communities, displacing families, destroying homes, and leaving lasting scars. Each storm is a reminder that while nature can be powerful, human kindness is stronger.
For us, this isn’t just an international headline — it’s personal. Through our dear friend and colleague Aura, we’ve seen firsthand how devastating these events can be. Cebu was recently struck hard by severe storms and flooding, leaving families without homes, food, or clean water. Aura’s family, along with so many others, is now facing the daunting task of rebuilding from the ground up. When she shared what was happening — homes washed away, electricity lost, the loss of family members, friends, neighbors, and family pets, the lack of fresh drinking water and much more — we knew we had to act.
At Ginsburg Law Group, our mission has always been about standing up for people when life knocks them down. Whether that’s in a courtroom or across the world, the principle is the same: we help because we can.
Why the Need Is So Great
Cebu is not alone in its suffering. Across the Philippines, repeated disasters compound over time — floods follow typhoons, landslides hit areas that never fully recovered from the last storm, and rebuilding often takes years.
Entire communities are relying on aid for food, shelter, and medical supplies. Local volunteers are doing heroic work, but their resources are stretched thin.
And yet, amidst this devastation, the spirit of the Filipino people continues to shine — in the way neighbors share food, rebuild together, and look out for one another. It’s this spirit that inspired us to get involved.
Key Areas Where Support Makes a Difference
Here are the main types of assistance that really move the needle
- Emergency relief supplies
- Food, clean water, hygiene kits, temporary shelters. For example, organizations respond to typhoons by distributing these basics.
- Medical assistance and logistics (transport, power, water-sanitation) in the hours and days right after an event
- Rebuilding & recovery
- Replacing damaged homes, schools, community centers. The nonprofit All Hands & Hearts has programs in the Philippines focused on rebuilding education infrastructure after typhoons.
- Supporting livelihoods: when people’s homes and businesses are destroyed, helping them restore income matters as much as rebuilding walls.
- Disaster preparedness & resilience
- Strengthening infrastructure, early-warning systems, community training so the next storm or earthquake is less devastating.
- Supporting systems that help communities respond themselves, which amplifies the effect of assistance.
- Targeted support for vulnerable groups
- Women, children, persons with disabilities often bear the heaviest burdens in disasters.
- Ensuring that support reaches remote or marginalized regions (rural islands, mountainous areas) where access is difficult
Practical Ways You Can Help
Here are actionable steps you can take — whether you’re based in the U.S., online, or planning travel to the Philippines
- Donate to trusted organizations
Pick nonprofits or relief agencies with a strong track record in the Philippines. For example:- World Vision Philippines: They provide ways to donate for typhoon relief, child sponsorship, “disaster risk response”.
- All Hands & Hearts: Focused on rebuilding.
Before you donate, check that funds go where they are needed and that the organization is transparent.
- Give intentionally rather than just “stuff”
- Monetary donations often help more than sending physical goods (which may incur shipping/delivery complications).
- If you do send goods, coordinate with local agencies so your shipment fills a real need and check whether the recipient has capacity to store and distribute the goods.
- Support longer-term projects
- Consider committing to rebuilding or resilience initiatives, not just immediate relief.
- Ask about programs that help train the community, build infrastructure, or address root vulnerabilities
- Raise awareness & advocate
- Share information within your networks: social media posts, local community groups, etc.
- Advocate for sustained attention (media and donor fatigue is real). Disasters happen, then fade from the headlines but the work continues.
A Note for Our Practice & Community
Since we represent consumers and frequently write about legal and financial rights, we want to highlight a connection: disasters in the Philippines don’t just destroy physical infrastructure—they also create financial vulnerability. Families may lose homes, jobs, savings; they may become victims of predatory lending in the aftermath. Helping rebuild their stability means helping protect their rights. If you—our readers, clients, or community members—have connections to the Philippines (family, business, etc.), we encourage you to:
- Check on loved ones and ensure they are aware of their rights post-disaster.
- Consider how a donation or assistance might support not just immediate survival, but longer term financial/regulatory stability.
- Recognize that consumer rights and fair practices matter in recovery: when relief funds flow in, when rebuilding happens, when aid is delivered, the community needs transparency and accountability too.
The Bigger Picture: Hope Beyond Relief
What are we doing? We are raising awareness and raising funds for our colleague, Aura and her family. Aura’s courage has inspired us all. She reminds us that behind every statistic is a story — of mothers, fathers, children, and communities determined to rise again. We’re proud to stand beside her, to support Cebu, and to use our voice and platform to help amplify theirs. The road to recovery is long, but hope grows stronger when compassion leads the way. If you’d like to contribute or learn more about our ongoing campaign, please visit: https://gofund.me/5353d73a5. Together, let’s show that kindness knows no distance — and that even across oceans, community endures. 💙
While immediate aid is critical, long-term resilience is equally important. By supporting the Philippines now, we help communities prepare for future disasters — building stronger homes, better early-warning systems, and more sustainable infrastructure. Please join us in helping the Philippines.
The Year of the Robocall Reckoning
What 2025’s Wave of TCPA Class Actions Means for Consumers
10/28/25-Unwanted calls and texts have become part of modern life—but in 2025, the tide may finally be turning. In the past few weeks, several major lawsuits have been filed across the country under the Telephone Consumer Protection Act (TCPA), a federal law designed to protect consumers from intrusive telemarketing, robocalls, and mass texting campaigns. What’s remarkable about this new batch of cases is how broad they are. The defendants range from a national telecom carrier to a home-improvement manufacturer to one of the country’s largest banks. Together, they paint a picture of widespread disregard for consumer consent—and of a statute that remains one of the strongest tools for restoring a measure of peace and privacy to everyday life.
Three Standout Cases
Below, we look at three standout cases:
- Keidan v. AT&T, Inc. (S.D. Fla.)
- Lui v. Capital One, N.A. (S.D. Cal.)
- Newell v. Pella Windows & Doors, Inc. (E.D. Pa.)
and what each reveals about the direction of consumer protection in 2025.
1️⃣ Keidan v. AT&T: The New Era of “Dual Enforcement”
The plaintiffs in Keidan allege that AT&T violated not only the federal TCPA but also the Florida Telephone Solicitation Act (FTSA)—a powerful state-level privacy law that mirrors and expands upon the federal statute. Florida’s FTSA, amended in 2021, has quickly become one of the toughest consumer privacy laws in the country. It allows lawsuits over unwanted text messages and makes it illegal to use an automated system to call or text consumers without express consent. Each violation can cost a business up to $1,500 per call or text in statutory damages. The significance of Keidan lies in the way state and federal laws now operate side-by-side, creating overlapping layers of liability. A single unsolicited text in Florida could, in theory, violate both the TCPA and the FTSA—doubling potential exposure. For consumers, that’s a good thing: it strengthens enforcement in a landscape where federal regulators, like the FCC, can’t pursue every bad actor. For businesses, however, it’s a compliance nightmare The case also lands amid broader national trends: states like Washington, Oklahoma, and Maryland are considering or have enacted similar “mini-TCPA” statutes. Together, these laws signal a growing recognition that privacy enforcement is increasingly a shared federal-state responsibility.
2️⃣ Lui v. Capital One: Debt Collection Meets Privacy Rights
In Lui, a California consumer claims Capital One repeatedly called using an auto-dialer and prerecorded messages about a debt. The lawsuit pairs the TCPA with the Rosenthal Fair Debt Collection Practices Act (RFDCPA)—California’s version of the federal Fair Debt Collection Practices Act (FDCPA).
That combination is powerful. Debt collection calls often test the limits of consumer tolerance; when automated systems enter the picture, they can become overwhelming. The Lui complaint frames these calls not just as a financial nuisance but as an invasion of personal privacy, blending the “harassment” theory from debt-collection law with the “consent” theory from the TCPA. This convergence of debt defense and robocall litigation is becoming more common, and for good reason. Many collectors use automated dialing systems without realizing they’re subject to the same TCPA restrictions that apply to telemarketers. The Lui case makes clear that even legitimate debts don’t create carte blanche for relentless auto-calls. For consumers struggling with debt, this matters: the same unwanted contact that might feel like collection harassment could also be a TCPA violation worth hundreds or thousands in statutory damages per call.
3️⃣ Newell v. Pella Windows & Doors: Class Actions and Corporate Accountability
In Pennsylvania, homeowner Newell filed a proposed nationwide class action against Pella Windows & Doors, alleging the company made telemarketing calls promoting home-improvement services without consent.
At first glance, it might look like another standard telemarketing suit—but the broader context makes it more important. The TCPA’s class-action mechanism remains one of the few ways individual consumers can hold large corporations accountable for small, repeated harms. If a company makes a few thousand unwanted calls, few people will sue individually. But together, those consumers can form a nationwide class and bring powerful claims under a federal statute that Congress intended to be privately enforced.
This case also reminds us that telemarketing remains alive and well in industries that may seem old-fashioned. As companies shift from door-to-door sales to data-driven lead generation and auto-dialed outreach, many cross the legal line without realizing it. For homeowners, this means that the same call offering to “inspect your windows” or “update your kitchen” could carry TCPA implications if made without clear, documented consent.
Beyond the Courtroom: Why These Cases Matter Now
The timing of these filings isn’t accidental. Two major developments have recently shaken the TCPA landscape:
- April 2025 “Reasonable Revocation” Rule.
The FCC’s new rule requires businesses to honor requests to stop robocalls or robotexts within 10 business days, and to accept opt-outs in any reasonable manner—spoken, written, or digital. - Supreme Court Uncertainty.
In a 2025 decision, the U.S. Supreme Court held that district courts are no longer bound by the FCC’s interpretations of the TCPA. That ruling empowers judges to craft their own readings of what counts as an “auto-dialer,” a “call,” or “consent.”
Together, these changes have created both opportunity and chaos. For plaintiffs, the looser interpretive landscape can open doors for broader claims. For defendants, it means compliance strategies based solely on FCC guidance may no longer be sufficient.
Consumer Takeaway: You Still Have the Right to Say “Stop”
The heart of the TCPA is consent. Businesses must get your permission before calling or texting you with automated systems, and you have the right to withdraw that consent at any time. If you receive repeated calls or texts after opting out—or if you never consented in the first place—you may have grounds to take action. Each unauthorized call or text can result in $500 to $1,500 in statutory damages, depending on whether the violation was willful. In practice, that means consumers have real leverage. Class actions like Newell show how one person’s experience can drive systemic change, while cases like Lui demonstrate that even in debt situations, dignity and privacy still matter. If a company continues to contact you despite your requests to stop, keep records:
- Note the date, time, and caller ID.
- Save text messages or voicemails.
- Write down any opt-out requests you made.
These docs can make all the difference if you decide to assert your rights.
The Bigger Picture: Privacy as the New Frontier of Consumer Law
The TCPA is no longer just about telemarketing—it’s about control. As technology evolves, so do the methods companies use to reach us: predictive dialers, AI chatbots, and SMS marketing platforms now blur the line between communication and intrusion. For consumers, the message of these recent cases is empowering: you have the right to control who contacts you and how. For attorneys, they’re a call to action: the TCPA and its state counterparts remain some of the most effective statutes for protecting privacy, deterring corporate overreach, and securing meaningful statutory relief for clients.
⚖️ Conclusion
2025 may well be remembered as the year of the robocall reckoning. With cases like Keidan, Lui, and Newell leading the charge, courts across the country are reaffirming that privacy is not a luxury—it’s a right.
If you’re tired of hearing from companies you never invited to your phone, you’re not alone—and the law is on your side.
Sovereign Exclusion and the Modern Consumer
Reflections on Perrong v. Bradford
10/15/25 - In Perrong v. Bradford (3d Cir. Oct. 6, 2025), the Third Circuit confronted a deceptively simple question with profound constitutional implications: can state legislators be sued under the Telephone Consumer Protection Act (TCPA)?
The court’s answer — no, absent “unmistakably clear” congressional intent — reaffirms a traditional principle of constitutional structure: that sovereign exclusion remains the default rule when Congress legislates in areas touching state functions.
Yet for those of us who advocate daily for consumers navigating an increasingly intrusive digital marketplace, Perrong also illustrates a deeper tension between federalism’s structural values and the functional realities of modern consumer protection.
⚖️ The Holding: A Reassertion of Sovereign Limits
The plaintiff alleged that state legislators, acting in their official capacity, had violated the TCPA’s prohibitions on unsolicited communications. The Third Circuit declined to extend the statute’s reach that far. Relying on the canon of clear statement — the idea that Congress must express an “unmistakably clear” intent before subjecting states or their officials to federal constraints — the court preserved a doctrinal boundary long respected in our federal system. This reasoning, grounded in Gregory v. Ashcroft (1991) and echoed in the Supreme Court’s post-Loper Bright jurisprudence, reflects a textualist fidelity to separation of powers and the constitutional balance between state and federal authority.
From a doctrinal standpoint, Perrong is entirely defensible. From a consumer standpoint, it is troubling.
💬 The Consumer Protection Paradox
The TCPA was enacted to protect one of the most intimate spaces of personal privacy — the right not to be disturbed in one’s own home (or now, one’s own phone). Over the past three decades, it has become one of the few federal statutes that empowers consumers directly, enabling individuals to vindicate their privacy rights through private enforcement.
Yet Perrong reminds us that the judiciary’s renewed emphasis on structural restraint can curtail the statute’s remedial reach. When courts insist upon bright-line exclusions for state actors, even in contexts where those actors engage in commercial or quasi-commercial behavior, the consumer’s ability to hold violators accountable contracts accordingly.
This is not to say that federalism principles are misplaced. But as the boundary between state and private enterprise continues to blur — particularly in technology, healthcare, and political communications — the rigid application of sovereign immunity risks leaving consumers without meaningful recourse.
🧩 The Broader Jurisprudential Moment
Perrong is emblematic of a wider intellectual movement in contemporary administrative and statutory interpretation — one characterized by skepticism toward implied delegations and a preference for structural clarity. The dismantling of Chevron deference in Loper Bright Enterprises v. Raimondo (2024) signaled the judiciary’s desire to reassert control over statutory meaning.
In that environment, doctrines like sovereign exclusion are gaining renewed strength. Courts are increasingly unwilling to infer congressional intent to displace state autonomy or to expand private enforcement beyond the most explicit textual commands.
For consumer advocates, this means that our work is no longer confined to litigation — it must extend to legislation. If Congress intends for federal consumer protection laws to reach state or quasi-state actors, it must say so with precision. Statutory clarity has become not merely good drafting; it is now a constitutional necessity.
🧭 A Call for Legislative and Judicial Balance
Perrong should not be read as an anti-consumer decision, but as a reflection of the judiciary’s commitment to federal structure. The challenge for Congress — and for those of us who work in this field — is to reconcile that structure with the equally vital imperative of consumer protection.
Federalism should not become a shield for conduct that, in substance, mirrors the private market behavior Congress sought to regulate. Nor should the absence of a “magic phrase” in a statute deprive consumers of the remedies that justice and common sense demand.
As the law evolves, our task as advocates is to ensure that constitutional fidelity and consumer fairness remain in dialogue — not in conflict.
The Rise of Quiet Hours TCPA Lawsuits
Why Timing Is Becoming the Next Battleground
Why Timing Is Becoming the Next Battleground
Why Timing Is Becoming the Next Battleground
09/08/25- Most people know the Telephone Consumer Protection Act (TCPA) as the federal law that cracks down on robocalls and unwanted texts. But there’s another piece of the statute that’s suddenly driving lawsuits: the clock.
Under TCPA rules, businesses may not send telemarketing calls or texts before 8:00 a.m. or after 9:00 p.m. in the recipient’s local time. For years, litigation focused almost entirely on consent — whether companies had permission to contact consumers. Now, a new wave of lawsuits is highlighting violations of “Quiet Hours.”
Recent Case Filings Highlight the Shift
Why Timing Is Becoming the Next Battleground
Why Timing Is Becoming the Next Battleground
In the past week alone, several class actions were filed alleging that businesses sent texts or calls too early in the morning or too late at night, including:
- Watler v. Checkers Drive-In Restaurants (C.D. Cal.) – Plaintiff alleged late-night telemarketing texts from the fast-food chain.
- Murrietta v. Bioverse Inc. (C.D. Cal.) – Claims of texts received outside permitted hours.
- Merrill v. Rawlings Sporting Goods Co. (C.D. Cal.) – Messages sent before 8 a.m. or after 9 p.m. disrupting privacy.
- Davalos v. Dango Products LLC (C.D. Cal.) – Complaint centers on promotional texts sent during Quiet Hours.
- Bush v. Left On Friday Inc. (C.D. Cal.) – Plaintiff alleges multiple nighttime texts intruding on peace and quiet.
The common thread? All argue that companies ignored TCPA’s time-of-day restrictions.
Why Quiet Hours Matter
Why Timing Is Becoming the Next Battleground
Why Quiet Hours Matter
The TCPA was enacted in 1991, when intrusive dinnertime robocalls were the main complaint. Congress specifically wrote in time-of-day restrictions to protect consumer privacy during rest hours. Violating these rules can be costly:
- $500 per illegal call/text
- $1,500 per willful violation
If a company sends thousands of messages during restricted hours, damages can balloon into the millions.
Why Now?
Business Implications
Why Quiet Hours Matter
So why the sudden focus on Quiet Hours in 2025?
Several reasons:
- Mass Texting Growth – Businesses shifted heavily to SMS and app-based promotions. Automated campaigns sometimes misfire on time zones.
- Class Action Strategy – Plaintiffs’ attorneys see Quiet Hours as a clear-cut, easy-to-prove violation that doesn’t require complex arguments over consent.
- Consumer Frustration – Late-night and early-morning pings are seen as especially invasive, making juries more sympathetic.
Business Implications
Business Implications
Business Implications
For companies, these lawsuits are a wake-up call. It’s not enough to simply get consent or offer an opt-out. Timing must be programmed correctly.
Mistakes happen when:
- Text campaigns are set on Eastern Time but blast to West Coast phones at 5 a.m.
- Vendors or marketing partners fail to sync time-zone data.
- Systems don’t distinguish between promotional and transactional messages.
Even if consumers consented, a single 6 a.m. coupon text could trigger a lawsuit.
Consumer Takeaway
Business Implications
Business Implications
For consumers, this litigation trend is encouraging. It shows courts are enforcing the TCPA in ways that reflect modern life. Everyone knows how disruptive a 2 a.m. buzz on your phone can be. If you’re receiving promotional calls or texts outside legal hours, you may have a claim. Keeping screenshots of timestamps and call logs can help preserve evidence.
Looking Ahead
Looking Ahead
Looking Ahead
Quiet Hours cases are likely to grow in 2025 and beyond. Courts may soon address questions like:
- Does a message scheduled at 8:01 a.m. in one time zone but received at 7:01 a.m. elsewhere violate TCPA?
- How much responsibility falls on third party texting platforms vs. the brand itself?
Until then, businesses face rising exposure, and consumers gain another shield against unwanted intrusions.
Conclusion
Looking Ahead
Looking Ahead
- The Quiet Hours provision of the TCPA has been around for over 30 years, but only now is it emerging as a litigation hotspot. For companies, it’s a compliance nightmare. For consumers, it’s a reminder that privacy matters not just in what messages are sent — but also in when.
- How much responsibility falls on third-party texting platforms vs. the brand itself?
Until then, businesses face rising exposure, and consumers gain another shield against unwanted intrusions.
When J.B. Hunt Transport Services recently agreed to pay $5 million to settle claims it violated the Fair Credit Reporting Act (FCRA), the headlines focused on the size of the settlement. But the deeper story—one that affects millions of job seekers each year—got far less attention.
At issue was J.B. Hunt’s alleged failure to provide job applicants and employees with a copy of their background check and a summary of their rights before taking adverse employment action. That is, the company may have rejected or fired people based on reports they never had a chance to review, let alone dispute.
For those who think this is just a technical misstep or an isolated case, think again. This is not a one-off. This is a flashing red light warning us about how quietly and pervasively due process is being stripped from the hiring process—often through automated systems, third-party screeners, and legally questionable shortcuts.
A System Without Appeals
The FCRA was designed to protect consumers by requiring transparency and fairness when employers use background reports. The law mandates that before someone is denied a job because of such a report, they must receive:
- A copy of the report, and
- A summary of their rights under the FCRA.
Why? Because background checks are notoriously error-prone. Reports may contain outdated, sealed, or inaccurate information. And when that happens, the consequences are swift and often permanent. The job offer disappears. The interview process ends. And the individual may never know why.
When employers like J.B. Hunt skip these steps, they’re not just breaking the law. They’re denying people the chance to correct mistakes that could derail their livelihoods.
Discrimination by Proxy
Background checks, particularly criminal history screenings, disproportionately harm communities of color, who have long been overrepresented in the criminal justice system. Even minor offenses from years ago—some of them later expunged—can appear on reports and silently block access to employment.
Add to that the rise of automated hiring systems that reject applicants based on checkboxes, keywords, or background flags with no human review, and you have a digital gatekeeping system that locks people out of jobs without explanation, appeal, or context.
The result? A two-tiered employment system. One for the "clean" candidate—and another for those with even minor blemishes, regardless of their relevance or recency.
Employers Must Do Better
Employers often outsource the dirty work to background check vendors, assuming legal liability ends there. It doesn’t. Under the FCRA, the hiring company is still responsible. And frankly, they should be. No one should be denied a job based on information they never saw and never had the chance to correct.
It’s time for companies to rethink how they use background checks—not just because of legal exposure, but because of what fairness demands. That means:
- Ensuring reports are accurate and relevant.
- Providing copies of reports before taking action.
- Giving candidates the chance to explain or dispute findings.
- Rejecting "one-size-fits-all" disqualification policies.
Toward a Fairer Future
The J.B. Hunt settlement should be a wake-up call, not just for corporate legal departments, but for policymakers, civil rights advocates, and consumers. As long as employment decisions are outsourced to black-box systems and faceless screeners, millions will be denied opportunity without due process.
America believes in second chances. Our hiring systems should reflect that.
What Wilson v. Reprise Means for Consumers
10 TCPA Trends to Watch in 2025–2026
A recent Oregon federal decision in Wilson v. Skopos Financial (Reprise Financial) treated unwanted text messages much like unwanted calls under the Do‑Not‑Call (DNC) rules. That’s a consumer‑friendly signal. Expect more lawsuits targeting mass texting, sharper consent rules, and growing pressure on companies to respect opt‑outs—fast.
1) Text Messages Are (Increasingly) Treated Like Calls
What changed: Courts are more willing to read the TCPA’s DNC protections to cover SMS and similar text formats, not just voice calls.
Why it matters: If you’re on the National DNC Registry and you get marketing texts you didn’t consent to, your claim is on stronger footing in more courts—especially where judges lean toward consumer privacy protections.
Consumer takeaway: Register your number on the Do‑Not‑Call Registry and keep screenshots of unwanted texts. They may be actionable.
2) “Misdirected” or “Accidental” Texts Won’t Excuse Violations
What changed: Courts are showing less patience when companies blame wrong numbers, recycled numbers, or clerical mix‑ups.
Why it matters: Businesses that rely on outdated lists or “intended for someone else” messages are seeing less sympathy at the pleading stage.
Consumer takeaway: If a text is clearly meant for someone else (e.g., “Hi Brian, finish your loan…”), document it and opt out. You may still have rights.
3) Stronger Emphasis on Consent—and Proof of It
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What changed: Marketing by text is moving toward “consent‑first” models. Courts and regulators increasingly expect clear, recorded, revocable consent tied to a specific phone number and campaign.
Why it matters: Companies must maintain audit‑ready logs of when and how consent was obtained, and how it can be withdrawn.
Consumer takeaway: If you never agreed to receive texts—or you revoked consent—say so plainly (“I revoke consent. Stop texting me.”) and save evidence.customers to your business.
4) Expect a Patchwork While Courts Disagree
What changed: Some courts read DNC text protections broadly; others are more narrow.
Why it matters: Plaintiffs gravitate to consumer‑friendly courts, and businesses face uneven rules across jurisdictions. This split can push agencies (like the FCC) or higher courts to clarify the law.
Consumer takeaway: If you’re evaluating a claim, know that where you bring it can matter.
5) Class Actions Remain a Powerful Tool
What changed: If texts are covered under DNC rules in a jurisdiction, it becomes easier to argue that a batch of similar texts violated the TCPA for many consumers at once.
Why it matters: Class actions can stop large‑scale texting campaigns and secure statutory damages that deter repeat behavior.
Consumer takeaway: If you and others received similar unwanted texts, a class approach may increase leverage.
6) New Messaging Tech (RCS, OTT, in‑app notifications) Will Face TCPA‑Style Scrutiny
What changed: Marketers are shifting to RCS and other channels beyond traditional SMS.
Why it matters: If the message functions like a telemarketing text—i.e., it’s an unsolicited sales pitch to your device—expect TCPA‑style arguments to follow, plus state‑law analogs.
Consumer takeaway: The label (“SMS” vs. “RCS”) matters less than the experience: if it feels like an unsolicited sales text, save it.
7) State “Mini‑TCPAs” Are Gaining Influence
What changed: Several states have passed or updated telemarketing and texting laws (sometimes stricter than federal rules) with their own definitions, quiet‑hours, and consent standards.
Why it matters: Even if a federal TCPA claim is uncertain, state‑law claims may apply—and can carry separate penalties.
Consumer takeaway: Unwanted texts may trigger state claims, too. A local consumer attorney can help you navigate both levels.
8) Opt‑Outs Must Be Easy—and Respected Quickly
What changed: Judges increasingly expect one‑word opt‑outs like “STOP” to be honored promptly, and companies to provide frictionless ways to revoke consent.
Why it matters: Continued messages after a clear opt‑out can raise damages and undermine a company’s defense.
Consumer takeaway: Use simple commands like “STOP".
9) Data Hygiene and Third‑Party Lists Are Under a Microscope
What changed: Courts look critically at lead generators and data brokers feeding contact lists to brands and lenders.
Why it matters: “We got your number from a vendor” no longer flies if the vendor can’t prove valid, specific consent.
Consumer takeaway: If a sender claims you opted in through a partner, ask for proof. Lack of verifiable consent helps your case.
10) Arbitration Clauses Won’t Always Close the Door
What changed: Many companies push disputes into arbitration via fine‑print terms. But enforceability can hinge on how you allegedly agreed, and what the clause covers.
Why it matters: Courts are scrutinizing assent (did you really agree?), scope (does it cover these texts?), and unconscionability.
Consumer takeaway: Don’t assume you have no options because of an arbitration clause. Ask a lawyer to evaluate the specific terms.
What Consumers Should Do Right Now
- Document everything: screenshots of texts, date/time, sender name/short code, and your opt‑out message.
- Revoke consent clearly: “I revoke consent. STOP texting me.” Keep proof.
- Watch your carrier bill for any unusual charges related to premium messages.
- Consider a complaint with the FCC and/or your state attorney general if messages continue.
- Consult a consumer lawyer if you’re getting repeated, unwanted texts—especially if you’re on the DNC list or never consented.
Signals to Watch in 2025–2026
- Further court decisions clarifying whether DNC rules cover texts across circuits.
- FCC guidance or rulemaking addressing texts, RCS, lead‑generation, and opt‑out mechanics.
- State law updates tightening quiet hours, consent standards, and penalties.
- Industry shifts toward double opt‑in, short‑code registration, and real‑time suppression lists to avoid repeat violations.
Quick FAQ
Q: I’m on the Do‑Not‑Call Registry. Can a company text me anyway?
A: They need valid, specific consent (and they must honor your opt‑out). Absent that, many courts treat promotional texts to DNC numbers as violations.
Q: What if the text was meant for someone else?
A: That often doesn’t excuse the sender. Misdirected or recycled‑number messages can still violate the law if you didn’t consent.
Q: I typed “STOP,” but the messages kept coming.
A: Save the thread. Each post‑opt‑out text can increase exposure for the sender and strengthen your claim.
Bottom Line
Wilson v. Reprise continues a broader move toward treating texts as protected communications under the TCPA’s DNC framework. For consumers, that’s good news: stronger privacy, clearer consent rules, and more accountability for companies that text first and ask questions later.