In recent years businesses have been subjected to an onslaught of class-action lawsuits under the Telephone Consumer Protection Act (“TCPA”). The TCPA prevents any call to a cell phone—including text messages—made using automated technologies without the express consent of the “called party.” The statute is vague and out of date. Nonetheless, any violation of the Act carries the potential for massive penalties of at least $500.00 per call. Enforcement actions by state attorneys general and the Federal Communications Commission (“FCC”) risk penalties of up to $16,000 per violation. Hundreds of TCPA lawsuits are filed every month; serving to exploit the TCPA’s massive statutory damage provision against well-meaning businesses that are simply trying to keep up with the TCPA’s ever-shifting compliance landscape. Making matters worse, regulators and attorneys generally have taken to vigorously enforcing the TCPA and the FCC’s related Telemarketing Sales Rules (“TSR”) in suits arising out of the smallest errors in National, State or Internal DNC scrubbing efforts. TCPA or TSR class action and representative suits can impose hundreds of millions or billions of dollars (or more) in potential exposure against businesses and individuals alike.
Dorsey is hitting back against this onslaught of litigation. We have compiled a highly experienced TCPA-focused defense team which has handled over 500 successful TCPA defenses. The team handles TCPA litigation deftly, aggressively and efficiently, seeing through to the heart of the matter and never wasting time on tactics that are bound to fail. The team has also successfully served as defense counsel in over 50 putative nationwide TCPA class actions and has defeated certification of “no express consent,” “wrong number,” “revocation” and “do not call” class definitions. Our TCPA defense team consistently delivers successful TCPA outcomes to businesses—whether in one-off cases or through cohesive national litigation strategies.
But Dorsey offers more than just great litigation depth. Dorsey’s lawyers can help guide your business through the thicket of shifting regulations and decisional law to keep it TCPA-compliant to avoid lawsuits in the first place. Indeed, its lawyers have repeatedly met with the Federal Communications Commission to help push for statutory clarity and have drafted appellate briefs and “friend of the court” briefs in an effort to convince appellate courts to return sanity to the TCPA. And if regulators call, Dorsey’s lawyers are renowned for vigorously defending businesses faced with inquiries or enforcement proceedings.
This depth and multi-faceted approach are crucial to clients nationwide. Through extensive trial and counseling experience, our team leverages highly effective motion to dismiss theories, class certification arguments, insurance coverage strategies, class notification strategies, and claims management strategies to our clients’ benefit.
With a group of focused and successful TCPA defense lawyers, noted industry expertise, and a wealth of experience in privacy issues, class action litigation, and other related disciplines, Dorsey is the right call for TCPA advice.
Read more about the Telephone Consumer Protection Act and how Dorsey helps clients respond.
The Telephone Consumer Protection Act was enacted in 1991 to prevent scatter-shot telemarketing robocalls to emergency lines and cell phones and created the National Do Not Call list. Unfortunately, the law was poorly constructed and its application has become murky and ever changing. Most notably, the TCPA created a private right of action that has lead to an onslaught of aggressive and abusive litigation against legitimate businesses.
Dorsey’s lawyers are at the forefront of trying to stop this abuse and reign in its damage to business. From strategic litigation practices—aimed at making the right arguments in the right cases to create the right law—to appellate work, compliance, and regulatory advocacy, Dorsey’s TCPA team is tackling the problem from all angles to help our clients succeed.
The TCPA carries massive statutory penalties that are well beyond the scope of the original legislative intent. The minimum penalty for violating the statute is $500.00 per call, but that can be trebled for willful violations in the discretion of the court.
The risk created by the TCPA is very real, but compliance-minded businesses can generally avoid the brunt of these suits with careful planning and experienced counsel. Dorsey’s team has that experience and can help you avoid litigation and defend you if sued.
Courts and the FCC have expanded the scope of the TCPA far beyond Congress’ original intent. As a result, legitimate commercial activity and phone equipment can get businesses in trouble. Plaintiff’s attorneys have sought to exploit uncertainties that have arisen around questions such as: What constitutes an automated telephone dialing system? Must consumer consent to calls be in writing and can it be revoked? From whom must consent be obtained?
Dorsey’s lawyers have successfully pushed back against aggressive arguments of plaintiff’s counsel, often helping clients achieve favorable summary judgment. In fact, Dorsey’s TCPA lawyers have earned first-in-the-nation results—such as a ruling that calls to a phone number assigned to a VoIP service do not trigger statutory liability. Dorsey lawyers commonly counsel financial service providers and other businesses on key compliance considerations and policies as the law evolves.
Some cases suggest that TCPA cases are “commonly” and “easily” certified, while others suggest that TCPA cases must only be certified in “exceptional” circumstances. Generally speaking, however, where a business acts prudently to obtain and track consent, certification is inappropriate because individualized inquiries of consent will swamp common issues. On the other hand, if a business has no evidence that the customers it was attempting to reach gave their consent certification might be granted.
Businesses facing a TCPA class action need experienced counsel. Dorsey’s attorneys have handled dozens of nationwide TCPA class actions. They know the tricks used by class action lawyers and how best to thwart them at the outset. If a battle over certification looms, rest assured that Dorsey’s lawyers have repeatedly defeated class certification and maintain a database of hundreds of cases addressing the subject.
- Litigation Defense – Dorsey’s team has handled hundreds of TCPA cases, including class actions in various jurisdictions nationwide and have repeatedly achieved successful outcomes for clients.
- Compliance/Prevention – Dorsey’s team has assisted clients with their compliance efforts to limit TCPA exposure, including preparation of consumer and vendor agreements, implementation or review of internal policies and procedures for a company, analyzing marketing campaigns before roll out, guidance with consumer outreach campaigns, employee training efforts and due diligence review.
- Advocacy – Dorsey’s team has assisted companies and industry groups in their advocacy efforts to the Federal Communications Commission (“FCC”).
- Regulatory – Dorsey’s team has extensive knowledge of local and federal regulations with our multijurisdictional capabilities, and we are well positioned to help clients effectively and creatively with regulatory and compliance issues that often arise in conjunction with the TCPA.
- Successfully defeated class certification of a “wrong number” and “do not call” data class in a putative nationwide TCPA class action against a major auto finance company with millions of customers.
- Obtained the FIRST post-Spokeo Article III dismissal of a TCPA case anywhere in the country. Stoops v. Wells Fargo Bank, N.A., No. 3:15-83, 2016 WL 3566266 (W.D. Pa. June 24, 2016).
- Exposed unlawful legal referral service operating as a call blocking application by thoroughly investigating a class action plaintiff’s claims, resulting in the company shutting down its legal referral service.
- Earned protective order preventing burdensome class discovery and data demands in TCPA class action.
- Won costs and attorney’s fees for client in arbitration based on a finding that the claimant’s TCPA claims were “patently frivolous.”
- Earned a stay of an individual TCPA case pending the outcome of the ACA, Intl. proceeding challenging the FCC’s omnibus ruling. Rose v. Wells Fargo Advisors, LLC, No. 1:16-cv-562, 2016 WL 3369283 (N.D. Ga. June 14, 2016).
- Earned a protective order narrowing discovery regarding previous lawsuits against a defendant. Josephine Beaulieu v. Wells Fargo Bank, N.A., Case No: 6:15-cv-2116-Orl-40GJK, 2016 WL 2944048 (M.D. Fl. May 18, 2016).
- Hartman v. Comcast Business Communications. (USDC, W.D. Washington) Defended class action involving alleged violations of TCPA and state ADAD statutes.
- Baron v. Direct Capital Corp. (USDC, W.D. Washington) Defended class action involving alleged violations of ADAD and TCPA/“Robo Call” federal and state statutes.
- Represented client facing TCPA allegation and demand for money or threat of filing class action lawsuit. Investigated the claim and responded aggressively to the allegation and demand, offering no compensation. The matter was dropped.
- Defended clients facing nationwide putative TCPA class actions in the banking, online retail, marketing and consumer finance industries in multiple jurisdictions.
- Counseling clients on TCPA compliance, including reviewing customer and marketing contact policies in multiple lines of business, assessing compliance and risk, recommending and implementing significant changes to practices and disclosures.
Industries & Practices
- Banking and Financial Institutions
- Class Action Litigation
- Consumer Financial Services
- Cybersecurity, Privacy & Social Media
- Financial Services Regulatory
- Food, Beverage & Agribusiness
- Health Care