On February 18, PepsiCo and one of its distributors were on the receiving end of a Telephone Consumer Protection Act (TCPA) class action complaint stemming from alleged robocall violations. The plaintiff in Epps v. PepsiCo Inc. and Quail Mountain Coffee & Vending alleges that he received “numerous telemarketing calls” to his cell phone with prerecorded voice messages from Pepsi asking if he would like to restock his supply of Pepsi products. Epps claims that he never consented to receive such calls.

Epps is asking for treble damages of up to $1,500 per call, alleging that these were knowing violations on the part of the defendants. However, the nature of the calls and the fact that they were placed by a Pepsi distributor seem to indicate a business-to-business (B2B) call, perhaps meaning that these violations are the result of wrong number calls. Of course, because the TCPA is a strict liability statute, wrong number calls would still be violations and could be penalized up to $500 per call.

It is notable that the plaintiff is alleging violations of the TCPA’s regulations on the use of prerecorded voice calls rather than its automatic telephone dialing system (ATDS) rules. This fits with the trends following Facebook v. Duguid whereby plaintiffs are more likely to pursue robocall claims or Do Not Call (DNC) list claims rather than ATDS claims.