The number of Telephone Consumer Protection Act (“TCPA”) class action lawsuits has exploded in the past few years.  The October 16, 2013 Amendments and the often liberal interpretation of the TCPA by Courts and the Federal Communications Commission (“FCC”) has further emboldened TCPA class action plaintiffs.

What is the TCPA?

The TCPA was enacted in 1991 and, with some notable exceptions, 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 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 Class Action 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, but there are many factual and legal defenses which may 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 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.   The cover-up will almost always be worse than the underlying infraction.

Third, do not overreact.  A knee jerk press release or call to plaintiff’s counsel in defense of your business practices will almost certainly cause much more harm than good. It is a poor legal strategy to rely upon the honor and good faith of the law firm that is suing you. Business practices that you believe to be proper, and that many or most of your peers in your particular industry are engaged in, may, in fact, be unlawful.  Moreover, such practices are likely the actual basis of the plaintiff’s claim.  Sharing your business practices with your adversary directly, or through a press release, may simply confirm plaintiff’s 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, speak with experienced counsel.  Immediately upon being served with, or otherwise notified of, a TCPA filing, it is critical that you contact experienced class action counsel, preferably counsel that is familiar with the TCPA, as well as telemarketing 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. Be as inclusive as possible.  It is particularly important for your counsel to know where the potholes and landmines are.

In addition, there are many factual and legal defenses that may apply to your case and that your counsel may be able to use to obtain a positive result. For example, are you an advertiser?  If so, you might have indemnity rights against your publisher, or vice versa. 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 or your business erroneously, or served you improperly?  Often plaintiff’s counsel, despite its best efforts, does not have all of the material facts, or, more particularly, factual and legal defenses, that may apply to your case.

Avoid Being Named in a TCPA Class Action Altogether

Better still, a penny of prevention is worth a pound of cure.  The days of “seat of your pants” TCPA compliance are over. The best way to succeed in any TCPA class action or regulatory action is to never appear on plaintiff’s radar screen in the first place.  Are you currently working on a regular basis with experienced telemarketing and Internet marketing counsel?  Retaining counsel versed in the intricacies and nuances of the TCPA, telemarketing practices and online marketing to advise you on an ongoing 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 text message marketing, telemarketing and/or consumer product industries.