If you are a telemarketer, you have probably heard plenty of talk about the Telephone Consumer Protection Act (“TCPA”). The TCPA is a consumer protection statute passed in 1991 and designed to protect the public from certain telemarketing tactics. As is often the case, technology has advanced exponentially faster than the TCPA, putting the law in a near constant state of flux. These frequent changes have contributed to the proliferation of TCPA litigation.
Considering the foregoing, the question that telemarketers must ask is: how does a business succeed in defending against TCPA litigation?
Winning TCPA litigation strategy starts with best-in-industry compliance.
Most people think that winning court battles is the way to be successful in TCPA litigation. But real success means never having to step on the battlefield in the first place. Having the most up to date telemarketing Terms and Conditions, privacy policies, and TCPA consent language will, most likely, snuff out potential disputes before they become lawsuits. Obtaining clear, incontrovertible agreement to your Terms and Conditions will, for instance, make it far easier to enforce them in a court of law. Being able to more readily enforce Terms and Conditions may mean the difference between a class action case with millions of dollars in TCPA liability at stake and single plaintiff binding arbitration proceedings with mere thousands at stake. Remember that a business’s first goal in TCPA litigation is to avoid it altogether.
TCPA litigation happens. What should a business do when it does?
No telemarketer can avoid all TCPA litigation. As long as you are prepared for it, then the prospect of litigation should be manageable.
Keep Excellent Records. If the first line of defense in litigation is having best-in-industry telemarketing practices and procedures, the second line of defense is maintaining excellent records. Records of consent information, website visits, pictures of the landing page where users provide TCPA consent, and even video evidence of users opting-in can end a TCPA suit early and decisively. Remember – consent is an absolute defense against most TCPA allegations. As such, having impeccable evidence of consent saves time, money, and headaches.
Choose Your Business Partners Wisely. A business could do everything right and still face liability based on its partner’s actions. Lead generators, publishers, and third parties that directly contact consumers must also use proper TCPA consent language, must comply with TCPA regulations when placing calls, sending texts, or sending faxes, and must use the right dialing equipment. If one of those third parties takes an improper action on your behalf, both it and you could face TCPA liability. Before deciding to do business with a company, be sure to investigate its TCPA compliance practices and, even better, perform your own third-party compliance evaluation.
Be Quick, But Not in a Hurry. Addressing TCPA litigation quickly and decisively is a proven method for success. Still, telemarketers should not take hurried action. Rushing often leads to ill-advised communications with your adversary’s attorney, issuing press releases that may hamper litigation arguments, or offering to settle before you have the full picture of your defense strategy.
Settling a case with John Smith might seem like the expedient business decision, but it can just as easily backfire and lead John or his lawyers to simply file more cases against your business in the future, expecting the same result. If you keep good records, taking that extra little bit of time could mean finding that John in fact provided prior express consent to be contacted, thus defeating all of his TCPA claims. Hiring experienced telemarketing attorneys can help make sure that your business makes the right decisions, while avoiding the mistakes that come with haste.
Hire experienced telemarketing attorneys.
If you are interested in avoiding TCPA litigation or looking for the right defense counsel, hiring experienced telemarketing attorneys is essential. From keeping businesses TCPA compliant, to successfully handling TCPA litigation actions, hiring the right attorneys can make all the difference. The attorneys at Klein Moynihan Turco focus on TCPA compliance and can help your business stay on the right side of the law. If you need assistance with updating your telemarketing practices and procedures or defending against TCPA litigation, please email us at info@kleinmoynihan.com 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 seeking 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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