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 The statute is vague and out of date.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. 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 general 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 eight-attorney 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 class 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 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.
A team led by Eric J. Troutman joined Dorsey in 2016 and brings extensive experience in TCPA defense work. Read more about Eric’s experience here.
The following matters were handled by Dorsey attorneys prior to working at Dorsey:
Aderhold v. Car2Go N.A., LLC, Case No. C13-489RAJ 2014 (U.S.D.C. W.D. Wash. 2014) Court dismissed a suit in favor of the client finding that the contours of “express consent” were broad enough to encompass instances where a customer received a text message after providing a cellular number as part of an online registration process.
Masters v. Wells Fargo Bank South Central, No. A-12-CA- 376-SS, 2013 WL 3713492, (W.D. Tex. July 11, 2013)) Eric Troutman earned the nation’s first post-Genesis dismissal of a Rule 23 class based upon the mootness of a named representative’s claims.
Conrad v. Gen. Motors Acceptance Corp., 2012 WL 2551146 (N.D. Tex. 2012) Defeated a TCPA certification motion demonstrating that individualized inquiries swarmed common issues because “putative class members could have given consent by providing the cell phone number at the time of application, via a phone conversation with a customer service agent, via an email, via interface with the website, or during an in person field call by a skip trace agent.”
Heinrichs v. Wells Fargo, Case No. C 13-05434 WHA (N.D. Cal. April 15, 2014) Stay of proceedings in favor of Wells Fargo in a class action based upon the FCC’s primary jurisdiction to determine the meaning of the phrase “called party” for purposes of the TCPA’s express consent exemption. Eric Troutman subsequently travelled to Washington D.C. to personally meet with the FCC’s staff regarding the issue and to advocate for common sense clarifications that would help assure a uniform rule of law across the country.
The following matters were handled by Dorsey attorneys while working at Dorsey:
Developed a five-point strategy for leveraging the U.S. Supreme Court’s Spokeo decision to limit Plaintiff’s recoveries in TCPA cases and to dismantle the TCPA class action machine.
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).
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.
Counseling bank client on TCPA compliance, including reviewing customer contact policies in multiple lines of business, assessing compliance and risk, recommending and implementing significant changes to practices and disclosures.
Industries & Practices
- Class Action Litigation
- Consumer Financial Services