Can’t Escape TCPA Lawsuit

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October 24, 2017

TCPA Lawsuit

A federal court recently rejected’s efforts to have claims against it dismissed in a Telephone Consumer Protection Act (“TCPA”) lawsuit.   The TCPA lawsuit against seeks redress for alleged aggravation and intrusion of privacy resulting from the receipt of more than 75 product-related calls.

What were the allegations contained in the TCPA lawsuit?

The plaintiff alleged that she received calls from a variety of third party dealers attempting to sell her an wireless home security system.  She further alleged that: (1) the calls were placed without her prior express consent; (2) the calls included prerecorded messages; (3) the calls were received despite the fact that she had placed her number on the Do-Not-Call Registry; and (4) the calls persisted even after she informed several representatives not to call her again.  Importantly, however, the plaintiff acknowledged that she never received calls directly from  Nevertheless, she alleged that was liable for the alleged TCPA violations by virtue of its retaining the contractual right to discipline, and terminate its relationship with, the respective third-party dealers. moved the court to dismiss the claims against it because the plaintiff had failed to allege sufficient facts to claim that was liable for the conduct of the subject telemarketers.   In rejecting this argument, however, the Court held that advertisers may be held vicariously liable for the TCPA-violative acts of their agents.

Protect Yourself Against TCPA Lawsuits

As this TCPA lawsuit demonstrates, it is critical for businesses to understand the scope of the TCPA and its implementing regulations. sought to distance itself from liability for the alleged TCPA violations because it did not place the subject phone calls itself.  However, the court was not persuaded and explained that liability will extend to sellers when they are able to exercise a degree of control over the entities placing calls on their behalf.  Given the staggering exposure to liability that companies face in today’s TCPA-regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel in order to mitigate risk.

If you are interested in learning more about this topic or need to review your telemarketing practices or marketing partner agreements, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational 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 contained herein without seeking the advice of an experienced attorney.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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