You have just been served with a complaint that alleges that your company violated the Telephone Consumer Protection Act (“TCPA”). The Complaint alleges that a large number of people suffered from a similar violation and that a class action is the appropriate way to adjudicate the matter. What do you do now? There is one big problem: you know nothing about the TCPA. Facing TCPA litigation can cause a lot of confusion and anxiety, particularly for beginners. We have written about all sorts of TCPA issues, from a basic primer, to the role of intention in TCPA fax litigation. This beginner’s guide is different from a lesson on the basics of the TCPA. Our goal here is to arm you with information specifically suited to TCPA litigation defense and how to get quick and cost-effective results.
Where do I begin with my TCPA litigation defense?
Every evaluation of an alleged TCPA violation starts with the same two questions: Did we have prior express consent to contact the complaining party? And did we send the subject text messages or place the applicable telephone calls? It may sound naïve to start with the issue of consent; surely the party demanding money from my company knows whether she/he provided express consent to receive calls, text messages, or faxes. However, you may be surprised to learn that many people do not remember providing consent to be contacted, while others simply refuse to acknowledge it.
Keeping meticulous records of consent is crucial to defending any TCPA claim. When John Doe states in his complaint that your company violated the TCPA by sending him unwanted text messages, you need to have proof of consent that is easily accessible and unimpeachably accurate. Why is consent so important? Because valid prior express written consent defeats almost all TCPA claims. Our experience has shown that giving a TCPA plaintiff definitive proof of consent leads to a far quicker and less expensive resolution process.
Another seemingly obvious question to ask is: Did we send the text messages or place the telephone calls that form the basis of the TCPA complaint? The reality is that a lot of TCPA complaints involve text messages, phone calls, or faxes that the defendant had nothing to do with. The TCPA recognizes two types of liability: direct liability for the party who sent the text message or made the phone call, and vicarious liability for the principal who had an agent send the text message or place the phone call. With so many companies engaging third-party publishers to send text messages and place phone calls, the question of liability becomes a bit more nuanced.
Before you even get to arguments over whether you exercised enough control over the text message sender (or calling party) to qualify for vicarious liability, find out whether those text messages (or telephone calls) have anything to do with you or your business. Plaintiffs often assume that a particular company is responsible for text messages or telephone calls based on surface-level information. But the digital marketing world does not operate on surface-level information alone and neither does the practice of TCPA litigation defense. If the text messages or calls at issue have nothing to do with your company or your products/services, then you should provide plaintiffs with that information and, hopefully, quickly steer the case towards conclusion.
What do I do if I cannot get out of the litigation with these two defenses?
Maybe you discover that you do not have a record of consent or that the text messages or telephone calls relate to your company. Now what? The answer is not, as some might suggest, to throw money at the problem. True, sometimes settling litigation is the best business decision given the facts at hand. However, our firm’s experience often leads to a different approach. Settling TCPA litigation can be like playing Whac-a-Mole: the minute you resolve one case through settlement, another pops up elsewhere. As such, fighting a case today may save you a lot of time and money fighting 10 cases next month.
Each TCPA case involves unique facts, but patterns emerge that inform how to proceed. Following are just a few of the TCPA litigation defense strategies that work. First, try direct diplomacy by letting the plaintiff know that you have strong defenses, and that litigation is a waste of time. No luck? File a motion to dismiss the case. The plaintiff still will not budge? Bring counterclaims where appropriate. Is the plaintiff trying to certify a class? Show opposing counsel that the case is so unique that a class could never get certified. In fact, in TCPA litigation defense, the best defense is often a great offense.
Hire experienced TCPA attorneys who know the industry and have experience with defending companies like yours.
Many companies read a TCPA demand letter or a TCPA complaint and immediately throw down their weapons in surrender. This turns a business into a plaintiff’s attorney’s cash cow. The TCPA litigation defense strategies described here work and have worked over the course of years in myriad circumstances. But they only work if you have the right attorneys that know when and how to use them.
Klein Moynihan Turco focuses its practice on TCPA litigation defense and has represented large and small companies in the telecommunications industry in countless cases over the years. Our team of experienced TCPA attorneys can help your company navigate the uncertain waters of TCPA litigation and provide the legal advice that could help you avoid time-consuming and expensive litigation. If you need help defending against TCPA claims or need assistance updating your telecommunications practices, please email us at firstname.lastname@example.org or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information herein without seeking the advice of an experienced attorney.
Photo by Jonathan Francisca on Unsplash
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Does the TCPA Apply to Text Messages?