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 several hundred dollars, 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 general 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, may 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 with a copy of the named plaintiff’s obituary, and the case was immediately 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. Regular compliance consultation with counsel goes a long way toward making sure that a class action or regulatory complaint never gets filed in the first place.