May 26, 2026

By David Brunk, civil litigation attorney

Read the complaint

Bachhuber v. Berkman Funding tests liability for telemarketing calls to Do-Not-Call list registrants.

Kevin Bachhuber, a New York resident, alleges Berkman Funding LLC bombarded his cell phone with dozens of unsolicited telemarketing calls—despite his number being on the National Do-Not-Call Registry for over a decade. The lawsuit, filed in the Southern District of New York, seeks to certify a nationwide class of consumers who received similar calls, with potential damages exceeding significant amounts under the Telephone Consumer Protection Act (TCPA). At stake: whether Berkman Funding’s alleged failure to honor opt-out requests and scrub DNC-listed numbers exposes it to potential liability—or if the company can invoke the TCPA’s safe harbor to escape penalties.

Berkman Funding’s Alleged Pattern: Calls to DNC-Listed Numbers and Ignored Opt-Outs

Bachhuber claims he received numerous calls from Berkman Funding between 2024 and 2026, all promoting financial services, despite his number being on the DNC Registry since 2013. The complaint alleges Berkman Funding never obtained prior express written consent and failed to honor opt-out requests during prerecorded calls, potentially violating 47 C.F.R. § 64.1200(d). Plaintiff’s counsel argues Berkman Funding lacked a compliant internal DNC policy, did not train employees on TCPA rules, and scrubbed numbers against the National Registry only sporadically—forfeiting the safe harbor defense under 47 C.F.R. § 64.1200(c)(2)(iv). The calls allegedly continued even after Bachhuber demanded they stop, suggesting potential willful violations that could trigger significant damages per call.

The TCPA’s Do-Not-Call Regime: Potential Liabilities vs. Safe Harbor Provisions

The TCPA’s DNC provisions (47 U.S.C. § 227(c)) impose potential liabilities for calls to registered numbers, with no intent requirement—meaning Berkman Funding could be liable even if it acted in good faith. The safe harbor (47 C.F.R. § 64.1200(c)(2)(iv)) offers a potential defense if a company proves it had a written DNC policy, trained staff, maintained an internal DNC list, and checked the National Registry within 31 days of calling. Plaintiff’s complaint preemptively attacks Berkman Funding’s safe harbor eligibility, alleging the company lacked a written policy and failed to document compliance efforts—a strategy relevant in similar past rulings. The case tests whether technical compliance failures (e.g., no written policy) automatically forfeit the safe harbor, or if courts will adopt a functional approach (e.g., accepting oral training as sufficient).

Class Certification Risks: Why Berkman Funding Faces Significant Exposure

Bachhuber seeks to certify a nationwide class of all U.S. residents who received telemarketing calls from Berkman Funding while their numbers were on the DNC Registry. The sheer scale of potential class members, combined with the damage structure under the TCPA, could expose Berkman Funding to substantial financial liability. The case highlights the broader implications for telemarketers regarding compliance with the TCPA and the high stakes involved in class certification in such matters.

The next procedural step involves determining whether the court will grant class certification, which could significantly influence the outcome. Berkman Funding will likely file an answer or potentially seek to dismiss the case, citing the safe harbor provisions. Parties are expected to engage in discovery, and motions for summary judgment could follow if the case proceeds. Additionally, the court will examine the extent of damages and Berkman's compliance efforts with the TCPA’s mandates.

David Brunk is a civil litigation attorney. He can be reached at david@newmanbrunk.com.