The number of Telephone Consumer Protection Act (“TCPA”) class action lawsuits has exploded over the past few years. Unfortunately, many marketing companies and advertisers wait until they are named in a complaint or receive a subpoena before working with a TCPA lawyer, under the mistaken belief that their marketing practices seem lawful, that their contracts alone will protect them, or that they are safe because other marketing firms’ practices are worse. In fact, the TCPA is a very nuanced statute, which the Federal Communications Commission and various courts often interpret with conflicting, and certainly non-intuitive, results. As a result, it is important to work with a TCPA lawyer before you begin any telemarketing, (SMS) text or facsimile marketing campaign.

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, faxes and pre-recorded and/or autodialed telephone calls.

The TCPA allows for actual damages, or statutory damages ranging from $500.00 to $1,500.00, per unsolicited call or text message.  Not surprisingly, the TCPA has become fertile ground for class action litigation.   The October 16, 2013 amendments, together with the often liberal interpretation of the TCPA by courts and the Federal Communications Commission (“FCC”) (including the FCC’s expansive TCPA Ruling and Order in July 2015) have further motivated TCPA class action plaintiffs.

How To Win A TCPA Lawsuit

What should you do when your business, or you personally, are named in a TCPA class action?  The first steps you take are critical.

First, take a deep breath.  You will get through this lawsuit, and get the best possible result, if you remain calm and take the appropriate steps.  A class action is a serious matter. Fortunately there are many factual and legal defenses which may allow you to resolve the suit quickly and relatively painlessly.  The ultimate outcome of the case may depend largely upon your initial response.

Second, do not edit, create or destroy documents.   In our digital age, document tampering or spoliation will generally be uncovered during the discovery portion of the action.  Not only will this dramatically increase your adversary’s interest in the underlying case, but such activities can create a basis for sanctions or even lead the applicable court to strike critical defenses that would have been otherwise available to you.

Third, do not contact plaintiff’s counsel. One would be hard-pressed to think of a potentially more damaging legal strategy than to rely upon the honor and good faith of the lawyer that is suing you. Business practices that you believe to be compliant with the TCPA, and that many or most of your peers are engaged in, may well be unlawful. Such practices are likely the actual basis of the plaintiff’s claim.  Sharing your business practices with your adversary may simply confirm plaintiff’s case and serve as a clear admission of wrongdoing.

Fourth, or perhaps first, speak with an experienced TCPA lawyer immediately if you are served with, or otherwise notified of, a TCPA filing. Once you have retained a TCPA lawyer, you must provide him/her with any and all details, good and bad, associated with the underlying facts of the telemarketing campaign at issue. Explain your business model and your place in the marketing chain. Be as inclusive as possible.  It is particularly important for your TCPA lawyer to know where the potential landmines are.

An experienced TCPA lawyer should be able to advise you that there are many factual and legal defenses that may apply to your particular case.   For example, are you an advertiser?  If so, you might have indemnity rights against your publisher. Did you obtain proper consent from the recipient to send him/her the text message at issue?  How large or small was the applicable marketing campaign?  Did the plaintiff name you or your business erroneously, or serve you improperly?  Did you have policies and procedures in effect to prevent violations of the TCPA? Quite often, the plaintiff’s lawyer, despite his/her best efforts, does not have all of the material facts, or, more particularly, factual defenses, that apply to your case.

The Real Way to Win A TCPA Case – Call A TCPA Lawyer Today

We are amazed to see that many marketers and advertisers engaged in text messaging or telemarketing are still attempting “seat of the pants” TCPA compliance. One cannot comply with the TCPA simply by looking anecdotally at what other marketing peers are doing or simply utilizing a “common sense” approach. Many marketers and advertisers have paid multi-million dollar settlements due to technical non-compliance with the TCPA.

The surest way to succeed in any TCPA class action is to never appear on plaintiff’s radar screen in the first place.  If you are not currently working with an experienced TCPA lawyer, versed in the intricacies and nuances of the TCPA, to advise you on your marketing practices on an ongoing basis, you are almost certainly at risk. Moreover, in-house, as well as corporate, counsel should seriously consider how well they know the intricacies of the TCPA and whether consulting with an experienced TCPA lawyer best serves and protects their client. Proper compliance is the only sure fire way to win a TCPA lawsuit.

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