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How to defend a TCPA Class Action Lawsuit (May 2016)


Have you or one of your vendors been served with a TCPA class action lawsuit?  Do you need an experienced TCPA class action defense lawyer?  Don't panic; instead, be the hero at your company by saving your business' future.  For many brands, TCPA lawsuits are very expensive or devastating.  Those that get legal help quickly, normally survive.  Consulting with a TCPA defense firm is key, but they often need to be involved now rather than later in the case.  The TCPA is the Telephone Consumer Protection Act, passed by Congress, but enforced by the Federal Communications Commission ("FCC").  The FCC is also authorized by Congress to make additional TCPA regulations in addition to the TCPA statute itself.  TCPA laws and regulations contains rules for telemarketers and others who communicate over the phone.


State Court deadlines vary, but in U.S. Federal Court, you generally only have 21 days from the date you are served to file and initial Answer (or Motion).  Therefore, you need to speak to counsel immediately so they have plenty of time to prepare the Answer or seek an extension.  Many TCPA plaintiffs and their counsel will grant short extensions on the filing of your Answer, although they are not obligated to do so so there is no guarantee.  Also, some TCPA plaintiffs will allow an extension only on an Answer, but not if you want to file a Motion attacking their Complaint, such as an initial Motion to Dismiss.


Having evidence/documentation is key to winning your TCPA defense.  Your TCPA defense lawyer needs ammunition to win your case.  Preserve all relevant evidence by creating a "litigation hold" and temporarily ceasing any normal document destruction procedures you had in place.  You may not destroy relevant evidence once you have notice of a legal claim.  To do so is considered "spoliation," or the intentional destruction of evidence, and can lead to sanctions.  Also, you may need such evidence to successfully defend yourself later in the TCPA lawsuit.  Relevant evidence would include, for example, call logs, scripts, lead lists, dialer manuals, as well as contracts and emails with your marketing partners. If there is any doubt about the potential relevance of TCPA evidence, err on the side of caution and preserve it.  Private plaintiffs normally only have 4 years (TCPA "statute of limitations") from the date of the alleged call or violation, in which to file their TCPA lawsuit.


A TCPA class action lawsuit is one in which the individual plaintiff is trying to bring a claim for him/her-self, as well as for all other alleged victims of the calling campaign.  Experienced TCPA defense lawyers can often defeat the plaintiff's attempts to get the judge to "certify" the case as a class action.  If the class action element is defeated, TCPA cases become much easier (cheaper) to resolve or settle.  Some possible defenses to a TCPA lawsuit include: (1) prior consent; (2) for non-marketing calls, the plaintiff's previous provision of the number to the company; (3) TCPA safe harbor if compliant procedures were in place before hand; (4) in an autodialer case, that the Defendant did not use an ATDS; (5) in a DNC case, that Plaintiff had an established business relationship with Plaintiff; and (6) under the recent Spokeo supreme court decision, that the plaintiff suffered no "concrete" harm from the alleged calls and therefore has no standing to sue.  In a TCPA class action, additional options exist to attack the class action component of the lawsuit.  For example, the TCPA class action defendant may try to "buy off" the named plaintiff by essentially bribing them to drop the case and accept an individual settlement. Alternatively, a good TCPA defense is often that the alleged calls and potential plaintiffs are so different that it doesn't make sense to try them all together - that each claim is worthy of its own separate case because the nature of each is so different.  In some cases, it may be too difficult to determine long after the fact who was really called and when, or who owned the number at the time of the call.  Also, if some call recipients consented and others did not, it may be too difficult in one class action for the judge to determine which ones consented.  Some TCPA cases have been postponed ("stayed") based upon the existence of various pending FCC appeals and lawsuits, which challenge the TCPA rules themselves.


Many other possible TCPA defenses exist.  In any case, speak with a TCPA defense law firm promptly to ensure you calculate deadlines accurately and have time to prepare the most effective defense.  A good TCPA defense attorney can also advise you on whether it will be more cost effective to fight or settle. Consider having a TCPA attorney perform an audit of your telemarketing practices. 



A Devastating Blow for Multiline Dialers (July 2015)

(See the full text of the article here)


EXECUTIVE SUMMARY


The new July 2015 FCC regulation attacks marketers who use illegal autodialers. Marketers who use the wrong form of dialing system may be subject to fines of $16,000 per violation.[1] Additionally, class action lawsuits filed under this law are on the rise. Companies and individuals need to evaluate their dialing system for legal compliance, or else risk the devastating outcome of thousands of dollars in legal fees and significant judgments or settlements.

The FCC Order clarifies that all dialing platforms with the ability to call thousands of numbers quickly are considered to be restricted autodialers. The FCC defines an autodialer by its capacity rather than the way it’s used. In other words, a marketer who uses a restricted, multiline autodialer to make a couple dozen calls a day, using a single line, may be in violation of the new law.

Additionally, other FCC rules ban the use of multiline dialers that “abandon” (drop) more than 3% of all calls, if they fail to play the required abandon call message, or if they disconnect a dialed call without first letting it ring for 15 seconds. Most popular multiline calling platforms are in violation of these laws – a reality that many choose to ignore.

Marketers who use these platforms to dial – without first obtaining written consent from the person they’re calling – expose themselves to expensive fines and lawsuits. A growing number of individual plaintiffs make a full-time living suing telemarketers under the TCPA law. These “career plaintiffs” set traps to catch marketers using prohibited dialing systems, including multiline platforms that now fall under that umbrella.

Compliant, non-autodialer “preview” systems are a viable alternative for marketers. A fully-compliant preview system can be used by a live agent to efficiently dial through a list of numbers, one at a time. The preview system handles busy, disconnected, or ‘no answer’ calls with brief human intervention, and the agent can immediately respond to a live answer, or simply click a button to choose an appropriate pre-recorded voicemail and move on. The agent is actively involved before initiating every call.

True preview/manual calling platforms have no illegal autodialer features. Additionally, because these preview systems have no abandonment or disconnect issues, they are not required to implement the abandoned call messages, making them the safe choice for most marketers.

[1] 47 C.F.R. § 1.80 (b)(5).


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Allen Legal is the Nation's leading law firm for TCPA class action defense and TCPA compliance. (Click here for a video about TCPA Compliance and Defense)