The number of Telephone Consumer Protection Act (“TCPA”) class action lawsuits has grown significantly in recent years, with several thousand cases filed in 2014.  If your business contacts customers or potential customers via text, telephone or facsimile, or a third party does so on your company’s behalf, you are almost certainly on the radar screen of TCPA class action firms.  The steps you take now may well prevent you from getting named in a TCPA class action case.  Alternatively, if you are named, having taken proactive steps well in advance of suit will maximize your prospects of achieving a positive outcome.

What is the TCPA?

The TCPA was enacted in 1991 and, with some exceptions, allows individuals to file lawsuits (including class actions) to collect damages based upon receipt of certain (SMS) text messages, telemarketing calls, faxes, pre-recorded telephone calls or autodialed telephone calls.

The TCPA allows for actual damages, or statutory damages ranging from $500.00 to $1,500.00, per unsolicited call/text message or facsimile.  In light of the exacting standards and exceedingly high statutory penalties, the TCPA continues to be one of the most active areas of class action litigation.   The October 16, 2013 amendments, together with the overly-expansive interpretation of the TCPA given to it by the Federal Communications Commission (“FCC”) and some courts, has further motivated TCPA class action plaintiffs.   The following is a list of do’s and don’ts to help you and your business succeed in, or better yet avoid, a TCPA class action lawsuit.

DO’S     

  1. DO work with experienced TCPA counsel before you begin your marketing campaign.  A penny of prevention is worth a pound of cure.  No doubt many of the companies and individuals that have been hit with multi-million dollar TCPA lawsuits in the past few years would eagerly go back in time and spend a few hours each month working with experienced TCPA counsel.
  2. DO follow the regulations closely.  TCPA lawsuits are preventable.  There are some bright line rules that must be followed, while other provisions are more nuanced.  Many marketers believe common sense will be enough to comply with the TCPA, however the TCPA has little to do with common sense.  TCPA compliance requires knowledge of both the statute itself, as well as developing caselaw.   Mere technical non-compliance with the TCPA alone has resulted in multi-million dollar judgments against, and settlements by, many companies.
  3. DO choose your marketing partners carefully.  If you are an advertiser and a third party sends faxes, text messages or makes phone calls on your behalf, there is a substantial chance that you will be held liable for their violations of the TCPA.
  4. DO have strong indemnity agreements in place.  Because you can never know with 100% certainty how your third-party marketing partner will conduct its business, it is critical that you have ironclad indemnity provisions in place.  This is not a failsafe.  However, it is much better to have this potential pool of defense funds available to you than to not have it at all.
  5. DO protect your officers, directors and employees.  Individuals are potentially liable for TCPA violations even when a lawful corporate structure is in place.  This can be financially devastating to the affected individuals.  Having strong policies and procedures in place to prevent TCPA violations, and being able to demonstrate that the individuals at risk worked with counsel to prevent violations, is critical.  In addition, having proper insurance coverage in place, both for the company, and for acts of the individuals, is key.

DON’TS

  1. DON’T panic if your company is named in a TCPA lawsuit.  There are many potential defenses to a TCPA class action.  Experienced TCPA counsel should be able to identify and assert all available defenses.  Better yet, if you have been working with TCPA compliance counsel, you may be in a good position to have the case dismissed altogether when your lawful practices are demonstrated by your counsel to plaintiff’s counsel.
  2. DON’T accept the current caselaw as definitive to the outcome of your case.  Caselaw relating to the TCPA is being supplemented and molded on an almost daily basis.   For example, there appears to be a growing trend among the courts indicating that the FCC’s overly broad definition of autodialer does not comport with the intent of the statute, common sense or the clear wording of the statute.  See our recent blog on the GroupMedecision.
  3. DON’T speak with your adversary.  Relying upon the honor and good faith of the law firm that is suing you is never a good idea.   Business practices that you believe to be proper, and that many of your peers engage in, may in fact be the basis of the plaintiff’s claim.  Discussing your business practices with your adversary may simply confirm plaintiff’s case and serve as a clear admission of wrongdoing.
  4. DON’T issue a press release.   Not only may public declarations of innocence highlight business practices that may be at issue, press releases may also bring additional class action law firms forward in a race to the courthouse.  This may simply compound the difficulty of obtaining dismissal and increase your costs significantly.
  5. DON’T speak with employees, marketing partners, advertisers or other industry contacts until after you have spoken with your attorney.  Information that you discuss or share with any of the above may be discoverable by plaintiff and may ultimately harm your defense.  Moreover, upon learning of the case filing or potential filing, some of the above individuals and/or entities may have incentive to work with plaintiff to avoid being named as a party.
  6. DON’T create/destroy documents.   Document tampering or spoliation will generally be uncovered during the discovery portion of the action.  Such activities may create a basis for sanctions or even lead the court to strike critical defenses that would have been otherwise available to you.

The Real Way to Win A TCPA Case – Avoid Being Named Altogether

Of course, the surest way to succeed in any TCPA class action or regulatory investigation is obviously to never appear on the radar screen in the first place.  If you are not currently working with experienced telemarketing and Internet marketing counsel versed in the intricacies and nuances of the TCPA, you are almost certainly at risk.  Moreover, in-house (as well as corporate) counsel should honestly assess how familiar they are with the intricacies and nuances of the TCPA and whether consulting with counsel experienced in TCPA compliance best serves and protects their interests.  Proper compliance is the only sure fire way to succeed in a TCPA lawsuit.

This topic should be of interest to any company or individual engaging in text message marketing and telemarketing, as well as corporate and in-house counsel.