In what may be the largest payment to settle an action brought pursuant to the Telephone Consumer Protection Act (“TCPA”), the Bank of America (“BOA”) will be paying over $32 Million in an effort to settle six pending TCPA class action litigation matters.  The TCPA class action settlement, which must still be approved by a federal judge, was filed in the United States District Court for the Northern District of California on Friday, September 27, 2013.  On Monday, BOA issued a statement denying the allegations of wrongdoing, but assuring the public that “we are pleased to resolve this matter.”  The BOA litigations are a collective microcosm of a nationwide movement to hold companies liable under the TCPA for using auto-dialers to contact consumers on their cellular telephones without consent.

TCPA Allegations Against BOA

Although the settlement covers several different lawsuits in different federal courts, the allegations are largely similar.  By way of background, on December 6, 2007, the Federal Communications Commission issued a citation to BOA for violations of the TCPA, admonishing that “[i]f, after receipt of this citation, you or your company violate the Communications Act or the Commission’s rules in any manner described herein, the Commission may impose monetary forfeitures not to exceed $11,000 for each such violation or each day of a continuing violation.”  Despite this, the plaintiffs allege, BOA continued placing unauthorized telephone calls to customer’s cellular telephones using automated dialer technology.  The subject of the calls varied, though by and large they related to residential mortgage loan account and credit card collection calls.  With respect to at least one plaintiff, there is an allegation that she never gave BOA her cellular telephone number and, therefore, BOA must have “trapped” the customer’s telephone number by making a record of her cellular telephone number on an earlier inbound call to BOA using caller identification technology.

The TCPA Class Action Settlement

BOA negotiated the TCPA class action settlement terms over many months, including three in-person negotiations and numerous telephonic mediation sessions.  Despite the absence of any injunctive provisions in the final settlement agreement, the parties nevertheless have represented to the Court that BOA has developed “significant enhancements to its servicing systems which are designed to prevent the calling of a cell phone unless a loan servicing record is systematically coded to reflect the borrower’s prior express consent to call his/her cell phone.”  Most significantly, however, BOA has agreed to pay this record setting TCPA class action settlement amount.

Protect Yourself Against TCPA Class Action Claims

The TCPA has become the new favorite statute of class action plaintiff’s lawyers across the country.  We have been following a number of class action TCPA cases on a nationwide basis.  (See DirecTV Named in Multi-Million Dollar Class-Action TCPA LawsuitBank of America Sued in Putative Class Action Lawsuit for Alleged TCPA Violations).  This wave of TCPA litigation has resulted in a number of substantial settlement awards.  (See Domino’s Pizza Pays Almost $10 Million in TCPA SettlementPapa John’s To Pay $16.335 Million To Settle TCPA Class Action).  Additionally, new federal regulations concerning the TCPA are scheduled to take effect on October 16, 2013.  (See New TCPA Rules Effective October 16, 2013Will the New TCPA Amendments Apply Only to Cell Phones?)  It is becoming increasingly important for businesses to understand the scope of the TCPA and act affirmatively to protect themselves against class action claims and regulatory investigation.