Telephone Consumer Protection Act (TCPA) lawsuits can be devastating to business operations and long term viability. There are a number of different approaches that telemarketers can take in order to minimize potential liability. All of which ae critical, given that the TCPA provides for the recovery of actual damages or statutory damages in the range of $500.00 to $1,500.00, per unlawful telephone call.
For starters, telemarketers must have a firm grasp of the TCPA litigation landscape, from circuit splits as to the definition of an automated telephone dialing system and potential damages, to prior express written consent requirements and recent developments with respect to the development of a reassigned numbers database. The best way to avoid being named in a TCPA lawsuit is to consult with an experienced TCPA litigation defense lawyer and ensure that best telemarketing practices are developed and implemented.
If you are contacted by a TCPA plaintiffs’ attorney or if you have already been named in a TCPA lawsuit, some initial issues that you will want to address include, without limitation, assessing whether lawful prior consent can be established, whether the call was solicited in a way or consent of the intended recipient relied upon in such a way as to be legally defensible, whether potential legal issues were the result of the actions of third-party marketing partners over whom reasonably diligent compliance measures were exercised (your marketing contract may provide indemnity and defense rights), whether the message was commercial or transactional in nature, whether the plaintiff has standing to pursue an action, and whether the plaintiff is a proper class representative.
The past few years have been extremely active from a telemarketing compliance and litigation context. Countless TCPA lawsuits, including class actions, are filed each year in state and federal courts nationwide. This trend will continue throughout 2019.
While some business-friendly changes to the FCC”s position on TCPA litigation may be around the corner, ensuring your own TCPA compliance is not enough. For example, third-party vendors that make telemarketing calls must also have proper compliance measures in place or they can expose you to agency liability.
There are numerous exceptions and defenses to TCPA claims. Consumers and regulatory agencies such as the Federal Trade Commission and state attorneys general are becoming increasingly more aggressive in policing telemarketing practices. A telemarketing attorney well-versed in digital marketing, lead generation and SMS campaigns can also assist with defending your rights in lawsuits that have results from the wrongful actions of rogue marketers while protecting your reputation and brand.
Proactive compliance measures can go a long way to fending off frivolous allegations, as well. If you are engaged in telemarketing, whether consumer data touches your hands or whether data is merely posting on third-party websites and provided directly to others, working with experience telemarketing compliance counsel can go a long way to preventing telemarketing-related litigation. TCPA counsel with in-depth experience and insight into digital marketing businesses most vulnerable to TCPA litigation can also educate you on recent class action litigation trends and impending appellate court decisions.
If you are interested in learning more about TCPA compliance and litigation defense, contact the author at [email protected]
Richard B. Newman is a telemarketing compliance and defense attorney at Hinch Newman LLP.