The number of Telephone Consumer Protection Act (“TCPA”) class action lawsuits has exploded in the past few years. Congress and regulators cannot seem to keep up with new technology and new marketing methods, making the TCPA more patchwork quilt than finished product. Recent court decisions have had to fill in gaps in the TCPA, with new decisions adding to the TCPA’s interpretation almost every week.
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 text messages, faxes, pre-recorded telephone calls and autodialed telephone calls (to cell phones). 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. Notwithstanding this trend, experienced counsel can help you identify a wide range of potential defenses to such actions. Remember, before there can be a TCPA class action, there must be a viable underlying TCPA claim.
Defenses to a TCPA Class Action Lawsuit
As noted in previous blogs, upon receipt of a TCPA lawsuit, your first call should be to an attorney, preferably one thoroughly familiar with the TCPA, as well as telemarketing law in general. After discussing your contracts, business model, your place in the marketing chain and all known potholes and landmines, many defenses to the underlying TCPA claim may become readily apparent.
Did you have prior express written consent to engage in the telemarketing at issue?
Does the court have jurisdiction over you and/or your business?
Does the plaintiff have standing to bring TCPA claims against you and/or your business?
Was your relationship with the marketing campaign attenuated enough to fall outside the scope of TCPA liability?
Had you sold or transferred assets of the business prior to the campaign at issue, or have you otherwise been named in error?
Often plaintiff’s counsel, despite its best efforts, does not have all of the material facts or, more particularly, is not aware of the factual defenses, that may apply to your case. Telemarketers can sometimes avoid protracted and costly litigation by providing all of their defenses to the plaintiff’s attorneys very early in the case, letting them know that pursuing TCPA claims against you and/or your business is a waste of time.
Defenses to TCPA Class Certification
Even if it appears that there may be a TCPA violation, there are still several hurdles which plaintiff must overcome in order to proceed with the case as a class action, rather than an individual claim. The difference is vitally important. A stand-alone TCPA claim could settle for next to nothing, whereas many TCPA class actions have settled for, or resulted in judgments of, several millions of dollars. Some examples of defenses to TCPA class certification include:
The potential class may not be large enough to justify the use of a class action vehicle. For example, if the named plaintiff received a test mailing, or an ad hoc call or text which was not part of a full campaign, class certification may be unlikely.
Further, the claims of the representative party may not be typical of the claims of the proposed class, and without typicality, a judge will not certify a class. This is an area where plaintiffs frequently run into trouble. Because lack of consent is an element of a TCPA claim, the issues of whether the potential class members provided consent can be very problematic for the plaintiff.
Some important questions:
Which website did a class member visit when he or she provided prior consent to call/text?
What did the TCPA consent language look like on the day that the class member provided the consent?
In the applicable website Terms and Conditions, did that class member agree to a class action waiver or to resolve any disputes through mandatory arbitration and not in court?
These are just a few of the questions that telemarketers should ask in trying to defeat any finding of typicality.
Finally, the representative party may not fairly and adequately protect the interests of the class. This is an often overlooked and underutilized provision of the class action rule of procedure. A careful analysis of the potential class plaintiff may reveal a myriad of reasons why he/she should not serve as a proper class representative.
Has the class representative been refunded or tendered other payment to make him/her whole?
Does he/she have a criminal record?
Were there any improprieties in the underlying sign-up process when plaintiff’s information was acquired which makes him or her a questionable representative?
In one case that Klein Moynihan Turco LLP handled, unbeknownst to plaintiff’s counsel, the class representative actually died prior to class certification. Needless to say, we promptly provided a copy of the obituary to plaintiff’s counsel, and the case was soon dismissed.
Avoid Being Named Altogether
Notwithstanding the above, the best defense remains simply staying off plaintiff’s radar screen altogether. If you are an advertiser or telemarketer, the days of “seat of your pants” TCPA compliance are over. You must be working on a regular basis with attorneys versed in the intricacies and nuances of the TCPA, telemarketing practices and online marketing to advise you on an ongoing basis. This 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 text message marketing and telemarketing.
If you are interested in ensuring that you are compliant with current TCPA regulations, or if you are facing TCPA class action litigation or other regulatory complaint, please e-mail us at email@example.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 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.
This blog was originally published on June 19, 2014 and updated on September 14, 2021.