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posted 8 years ago
The number of class
action lawsuits brought under the Telephone Consumer Protection Act (the “TCPA”)
has exploded in the past few years. Amendments to TCPA regulations that
became effective in 2013, and the recent liberal interpretation of the TCPA by
courts and the Federal Communications Commission (“FCC”), have further
emboldened TCPA class action plaintiffs.
Defenses to a TCPA Class
Action Lawsuit
Upon receipt of a TCPA
lawsuit, a telemarketer’s first call should be to an attorney, preferably one that
is very familiar with the TCPA, as well as telemarketing law in general.
After discussing the business’ contracts, business model, place in the
marketing chain and all known potholes and landmines, many defenses to the
underlying TCPA claim may become readily apparent. For example:
·
Did the business have prior express
written consent to engage in the telemarketing at issue?
·
Does the court have jurisdiction over the
business?
·
Was the business’s relationship with the
marketing campaign attenuated enough to fall outside the scope of TCPA
liability?
·
Have assets of the business been sold or
transferred prior to the campaign at issue?
·
Has the business 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 the
subject case.
Defenses to TCPA Class
Certification
Even if there appears to
be a violation of the TCPA, there are still several hurdles that a plaintiff
must overcome in order to proceed with the case as a class action, rather than as
an individual claim. Bear in mind that a stand-alone TCPA claim could
settle for as little as $200, whereas many TCPA class actions have settled for,
or resulted in judgments of, several millions of dollars. Some defenses
to class certification in a TCPA case include, but are not limited to, the
following:
·
The potential class may not be large
enough to justify the use of the class action vehicle. For example, if
the named plaintiff received a test call or text which was not part of a full telemarketing
campaign, class certification may be unlikely.
·
The claims or defenses of the
representative parties may not be typical of the claims or defenses of the
proposed 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 a plaintiff. The issues of consent, particularly prior
express written consent, might need to be determined on a case-by-case
basis. As such, proceeding as a class action may be impractical, if not
impossible, for a plaintiff.
·
The representative parties may not fairly
and adequately protect the interests of the class. This is an often over-looked
and under-utilized provision of Rule 23 of the Federal Rules of Civil Procedure.
A careful analysis of the potential class plaintiff may reveal a myriad of
reasons why he or she is not fit to serve as a proper class
representative. Has the class representative been refunded or
tendered other payment to make him or her whole? Does he or she have a
criminal record? Were there any improprieties in the underlying sign-up
process when the plaintiff’s information was acquired which makes this a
questionable representative? In one case handled by Klein Moynihan Turco
LLP, unbeknownst to plaintiff’s counsel, the class representative actually died
prior to class certification. Needless to say, plaintiff’s counsel was
promptly provided a copy of the plaintiff’s named obituary, 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. For sellers and telemarketers, the days of “seat of your
pants” TCPA compliance are over. Businesses practicing in this space
should be working on a regular basis with attorneys versed in the intricacies
and nuances of the TCPA, the Telemarketing Sales Rule (“TSR”) and online
marketing regulation. This goes a long way toward making sure a class
action or regulatory complaint never gets filed in the first place.
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