So you have been served with a Telephone Consumer Protection Act (“TCPA”) Class action. The immediate questions invariably come to mind: What is the TCPA? What did I do wrong? How do I make this TCPA lawsuit go away without destroying my business and/or consuming the next two years of my life?
Background on the TCPA
By way of background, the TCPA was enacted in 1991 and, with some notable exceptions, the law allows individuals to file lawsuits (including class action lawsuits) to collect damages for having received unsolicited telemarketing calls, faxes, pre-recorded telephone calls or autodialed telephone calls. The TCPA has been interpreted by the Federal Communications Commission (“FCC”) and most courts to include unsolicited short message service (SMS) text messages within its definition of “calls.”
The TCPA allows for actual damages, or statutory damages ranging from $500.00 to $1,500.00, per unsolicited call/text message. Not surprisingly, the TCPA (particularly its applicability to text message marketing) has become fertile ground for class action litigation.
What to Do if You Are Named in 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 the ordeal, and get the best possible result, if you stay calm and take the appropriate steps. A class action is a serious matter, but there are many factual and legal defenses which can potentially end the case quickly and relatively painlessly. The ultimate outcome of the case may depend largely upon your initial response.
Second, resist the temptation to 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 disallow critical defenses that would have been otherwise available to you. The cover-up will almost always be worse than the underlying infraction.
Third, do not overreact. A knee jerk press release or call to plaintiffs’ counsel in defense of your business practices can often cause more harm than good. Even business practices that you believed to be proper, and that your peers in your particular industry are engaged in, may in fact be unlawful – and the actual basis of the plaintiffs’ claim. Sharing your business practices with your adversary directly, or through a press release, may simply confirm plaintiffs’ case and serve as a clear admission of wrongdoing. Do not say anything to anyone about the case, including your employees, until you . . .
Fourth, or perhaps first, contact experienced counsel. Immediately upon being served it is critical that you contact experienced class action counsel, preferably counsel that is familiar with the TCPA, as well as telemarketing and Internet marketing law in general. Once you have retained competent counsel, you should provide them with any and all details – the complete story. Explain your business model and your place in the marketing chain. Are you an advertiser? You might have indemnity rights against your publisher, or vice versa.
In addition, there are dozens of factual and legal defenses that may apply to your case and that you may be able to use to obtain a positive result. Did you have consent from the recipient to send him/her the text message? How large or small was the applicable marketing campaign? Was the campaign limited geographically? Perhaps the plaintiff named you erroneously, or served you improperly? Often plaintiffs’ counsel, despite its best efforts, does not have all of the material facts, particularly factual defense that may apply to your case.
Better still, a penny of prevention is worth a pound of cure. The best way to succeed in any TCPA class action or regulatory action is to never appear on plaintiffs’ radar screens in the first place. Are you currently working on a regular basis with experienced telemarketing and Internet marketing counsel? Retaining counsel that knows the intricacies and nuances the TCPA, telemarketing practices and online marketing to advise you on a going basis will go a long way toward making sure a class action complaint, or regulatory complaint, never gets filed in the first place.
This topic should be of interest to any company or individual engaging in a commercial venture within the United States, especially those involved in the online marketing, text message marketing, telemarketing and/or consumer product industries.