Have a Phone? Have a Customer? Your Company May Be a Target …/media/files/insights/... · 2014....

Have a Phone? Have a Customer? Your Company May Be a Target

for TCPA Litigation

November 18, 2014

2 squirepattonboggs.com

Amy L. Brown

Leader – Class Action & Multijurisdictional Practice

Washington DC

+1 202 626 6707

[email protected]

Philip M. Oliss

Leader – Cleveland Litigation Team

Cleveland, OH

+1 216 479 8448

[email protected]

Monica S. Desai

Partner, Communications

Washington DC

+1 202 457 7535

[email protected]

Paul Besozzi


Washington DC

+1 202 457 5292

[email protected]

Today’s Presenters

Background on the TCPA


Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to

stop harassing and unwanted phone calls to consumers.

The TCPA imposes restrictions on calls to cellphones using an “automatic

telephone dialing system” (ATDS) or artificial or prerecorded voice message,

and places certain restrictions on residential calls.

The Federal Communications Commission (FCC) is the Federal agency in

charge of implementing the TCPA.

There has been a sharp increase in the number of lawsuits alleging violations

of the TCPA.

1714 TCPA lawsuits filed year-to-date

70% year over year increases in lawsuits

Covered entities must be vigilant to avoid liability and manage risk in this

environment.


Key Areas of Controversy

More than 30 petitions pending at the FCC – clarification and rulemaking

requests on a wide range of issues:

Calls related to participation in clinical trials

Messages related to fraud alerts

Clarification re opting into a campaign

Whether certain software triggers the TCPA

Reassigned numbers

KEY ISSUES WE ARE DISCUSSING TODAY

What dialing systems are subject to the TCPA?

What constitutes prior express consent?


TCPA Statutory Language

The TCPA prohibits certain calls made to wireless numbers using an ATDS or an

artificial or prerecorded voice. Specifically, it provides:

It shall be unlawful for any person within the United States, or any person outside the United

States if the recipient is within the United States— to make any call (other than a call made

for emergency purposes or made with the prior express consent of the called party) using

any automatic telephone dialing system or an artificial or prerecorded voice … to any

telephone number assigned to a paging service, cellular telephone service, specialized

mobile radio service, or other radio common carrier service, or any service for which the

called party is charged for the call …

47 U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1).


What is an Autodialer

Under the TCPA, an ATDS is “equipment which has the capacity –

to store or produce telephone numbers to be called, using a random or

sequential number generator; AND

to dial such numbers.”

47 U.S.C. § 227(a)(1)(emphasis added).

The FCC has consistently stated that the basic function of an autodialer is “the capacity to dial numbers without human intervention.”

Under the TCPA, it is the calling system’s “capacity” that is relevant to an

autodialer determination. However, “capacity” is not defined in the statute, nor

in the FCC’s rules. (present vs. future ability).


What is capacity?

Are “predictive dialers” automatically an ATDS under the statute?

What about “preview dialers”?

Key Areas of Controversy


The TCPA provides a defense to calls made to wireless numbers using an ATDS

or an artificial or prerecorded voice, if the call is made with the prior express

consent of the called party:

It shall be unlawful for any person within the United States, or any person outside the

United States if the recipient is within the United States to make any call (other than a

call made for emergency purposes or made with the prior express consent of the called

party) using any automatic telephone dialing system or an artificial or prerecorded voice .

. . to any telephone number assigned to a paging service, cellular telephone service,

specialized mobile radio service, or other radio common carrier service, or any service

for which the called party is charged for the call.

47 U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1).

TCPA Statutory Language


"Called Party" is not defined under the TCPA.

In the case of reassigned numbers, this is highly controversial, and hotly

litigated.

Federal courts have come up with four different interpretations of the term.

Four FCC petitions on this issue alone, and numerous comments.

Who is the “Called Party”?


Opt out notices for facsimile advertisements must meet each of the following

elements:

Located on the first page of the fax advertisement

Clear and conspicuous

State that the recipient may make a request to the sender not to send any future ads

and that failure to comply within 30 days, with such a request is unlawful

Contain a domestic contact telephone number and a fax number for the recipient to

transmit an opt-out request

Six-month window for petitioners to comply (until April 30, 2015). Substantial

compliance is not sufficient

Other similarly situated parties may seek waivers, and are encouraged to do so

by April 15

October 30, 2014: FCC Fax Advertisements Order

Prior Express Written Consent for Telemarketing


Beginning October 16, 2013, the FCC required companies to obtain “prior

express written consent” before making a telemarketing call to a wireless

number using an autodialer or an artificial or prerecorded voice, or to a

residential line using an artificial or prerecorded voice.

Under these rules, callers will no longer be able to rely on an established business relationship (EBR) to avoid obtaining consent.

Note: EBR previously applied to calls to residential lines but had never applied

to calls to wireless numbers.

TCPA Rules – Prior Express Written Consent


Wireless and Residential Calls: The new written consent rules apply to

wireless and landline telemarketing calls to residential customers.

Voice Calls and Text Messages: Because the FCC and certain courts

consider text messages to be “calls” under the TCPA, the rules also apply

equally to calls and texts.

Applicability


The rules do NOT change requirements for non-telemarketing, informational

calls.

Purely informational, non-telemarketing calls to residential lines: No consent

needed.

Purely informational, non-telemarketing calls to wireless lines: Need either

prior oral or written consent.

Examples of “informational calls”: debt collection calls, airline notification

calls, bank account fraud alerts, school and university notifications, research

or survey calls, and wireless usage notifications.

Exemption for Prerecorded Informational Calls

COMPLIANCE: Prior Express Written Consent and Other TCPA

Requirements


Required Elements of “Prior Express Written Consent”:

There must be a written agreement,

Signed by the person receiving the call,

With a “clear and conspicuous disclosure” of consequences of consent

Unambiguously authorizes the seller to make telemarketing calls using an

automatic telephone dialing system or an artificial or prerecorded voice.

Includes the telephone number to which the authorization pertains.

Notes that the person is not required to sign the agreement as a condition of

purchasing any property, goods or services.

What Does “Prior Express Written Consent”

Mean?


The signature on the written consent may be electronic or digital, as well as in

ink.

For example a person may “sign” the consent via a website form, email,

keypad touch, or voice recording.

What Does “Signed” Mean?


“Clear and conspicuous disclosure” means a separate and

distinguishable notice that a reasonable consumer would see and

understand.

Features of a “clear and conspicuous disclosure”:

the requisite disclosure should be printed in a type size that a consumer can

readily notice and understand;

it should contrast with the background of the rest of the document;

it should not be buried on the back or bottom of the document; and

it should not be inserted with unrelated information that a person would think

is unimportant to read.

What Constitutes “Clear and Conspicuous

Disclosure?”


All of the information required to establish unambiguous prior express written

consent by a person can be disclosed using any method through which you can

obtain and keep a record of that consent, e.g., in an online call to action.

Where Should a Disclosure be Made?


Online Call to Action (require an affirmative check mark):

I authorize [Seller and its agents and affiliates] to call or text me with

offers and other advertisements on [301-444-1234]. I understand and

agree that these promotions may be delivered through use of automated

technology, automatic telephone dialing system or an artificial or prerecorded voice.

I understand that I am not required to sign this agreement, and am not

required to agree to the receipt of such calls or text messages, as a

condition of purchasing any property, goods or services.

Sample Compliant Disclosure


If any question regarding consent arises, the burden is on the seller to

demonstrate that the requisite “clear and conspicuous disclosure” was

provided and that unambiguous consent from the authorizing party was

obtained.

Burden is on the Seller


Companies should retain evidence of consent in case of potential compliance

challenges.

In light of recent case law discussing the applicable statute of limitations,

retention for at least four years would be prudent.

To ensure that sellers will be able to demonstrate compliance if challenged, these requirements should be built into document retention policies and

required of any third party telemarketing service providers using an ATDS or

artificial or prerecorded voice.

Evidence of Written Consent

TCPA Litigation


TCPA Cases filed September 2014

Tarizzo v. American Leisure Group, LLC, Case No. 2:14-cv-06850 (C.D. Cal., filed Sept. 2, 2014); Ranekouhi v.

American Medical Collection Agency aka Retrieval-Masters Creditors Bureau, Inc., Case No. 8:14-cv-01404 (C.D.

Cal., filed Sept. 2, 2014); Cruz v. I.Q. Data International, Inc., Case No. 3:14-cv-03982 (N.D. Cal., filed Sept. 2,

2014); Barnes v. Santander Consumer USA, Inc., Case No. 1:14-cv-01941 (N.D. Ohio, filed Sept. 2, 2014);

Violette Espinoza v. Caribbean Cruise Line Inc et al, Case No. 5:14-cv-01814 (C.D. Cal., filed Sept. 3, 2014);

Luster v. First Premier Bank, Case No. 1:14-cv-02844 (N.D. Ga., filed Sept. 3, 2014); Michelle Mock v. Kohl's

Department Stores, Inc. et al, Case No. 8:14-cv-01407 (C.D. Cal., filed Sept. 3, 2014); Carls v. Law Office of Joe

Pezzuto LLC, Case No. 2:14-cv-01930 (D. Ariz., filed Sept. 3, 2014); Shields v. Ultimate Vacation Group LLC

d/b/a Royal Bahamas Cruise Line, Case No. 3:14-cv-00285 (S.D. Tex., filed Sept. 3, 2014); Martin v. DirecTV,

Inc., Case No. 2:14-cv-06864 (C.D. Cal., filed Sept. 3, 2014); Gregory v. Integrity Solution Services, Inc., Case No.

5:14-cv-01827 (C.D. Cal., filed Sept. 4, 2014); Goetz v. Quality Resources, Inc., Case No. 5:14-cv-01099

(N.D.N.Y., filed Sept. 5, 2014); ORTIZ v. MIDLAND FUNDING, LLC, Case No. 2:14-cv-05095 (E.D. Pa., filed

Sept. 5, 2014); Doug Hauck v. Culver Capital Group, Inc. et al, Case No. 8:14-cv-01442 (C.D. Cal., filed Sept. 8,

2014); Tami Dube v. Student Loan Services Managers et al, Case No. 8:14-cv-01440 (C.D. Cal., filed Sept. 8,

2014); Alan L. Laub, DDS, Inc. v. Den-Mat Holdings, LLC et al, Case No. 2:14-cv-07004 (C.D. Cal., filed Sept. 8,

2014); Geismann, et al. v. American HomePatient, Inc., et al., Case No. 4:14-cv-01538 (E.D. Mo., filed Sept. 8,

2014); Moore v. Family Dollar Stores, Inc., Case No. 4:14-cv-01542 (E.D. Mo., filed Sept. 9, 2014); Luna v.

MediaFriends, Inc. dba Haywire Wireless, Case No. 2:14-cv-07027 (C.D. Cal., filed Sept. 9, 2014); Spector v.

ADVANCED MARKETING & PROCESSING, INC. dba PRECISION AUTO PROTECTION, a Florida Corporation,

Case No. 2:14-cv-07050 (C.D. Cal., filed Sept. 9, 2014); Shoemaker v. One on One Marketing, LLC et al, Case

No. 4:14-cv-00233 (N.D. Ga., filed Sept. 11, 2014); Kelly v. Kohl’s Department Stores, Inc. (S.D. Ind. 1:14-cv-

01499, filed Sept. 12, 2014)


Dean v. Synchrony Bank F/K/A GE Capital Retail Bank (S.D. Ind. 2:14-cv-00279, filed Sept. 12, 2014); Bonner et

al. v. Capital One Bank USA N.A. et al. (E.D. Pa. 5:14-cv-05278, Sept. 15, 2014); HUSPON v. GLOBAL TEL-LINK

CORPORATION, Case No. 1:14-cv-01514 (S.D. Ind., filed Sept. 16, 2014); Benenati v. Westlake Financial, Case

No. 2:14-cv-07240 (C.D. Cal., filed Sept. 16, 2014); Mayfield v. First Premier Bank et al, Case No. 5:14-cv-02062

(N.D. Ohio, filed Sept. 16, 2014); Collier v. Capital One Bank (USA), N.A., Case No. 2:14-cv-07216 (C.D. Cal., filed

Sept. 16, 2014); Goins v. Verizon Wireless et al, Case No. 0:14-cv-03677 (D.S.C., filed Sept. 17, 2014); Law

Offices of Todd M. Friedman, P.C. v. Nationwide Open Diagnostics, LLC dba Nationwide MRI , Case No. 2:14-cv-

07266 (C.D. Cal., filed Sept. 17, 2014); Abea v. Pioneer Credit Recovery, Inc., Case No. 2:14-cv-07257 (C.D. Cal.,

filed Sept. 17, 2014); Freeman v. Alliance Health Networks, Inc., Case No. 2:14-cv-07255 (C.D. Cal., filed Sept.

17, 2014); Goode v. DISH Network LLC et al, Case No. 7:14-cv-03674 (D.S.C., filed Sept. 17, 2014); Tsai v. Cellco

Partnership et al, Case No. 3:14-cv-04190 (N.D. Cal., filed Sept. 17, 2014); Orea v. Arbitron, Inc., Case No. 3:14-

cv-04235 (N.D. Cal., filed Sept. 18, 2014); Fitzhenry v. Independent Order of Foresters, The et al, Case No. 2:14-

cv-03690 (D.S.C., filed Sept. 18, 2014); Williams v. Convergent Outsourcing, Inc., Case No. 3:14-cv-01372 (D.

Conn., filed Sept. 18, 2014); Agazanof v. Five Four Group, LLC, Case No. 2:14-cv-07313 (C.D. Cal., filed Sept. 18,

2014); Johnson et al v. Capital One Bank USA NA, Case No. 1:14-cv-03693 (D.S.C., filed Sept. 18, 2014);

Alexander Braurman v. AGR Group Inc, Case No. 8:14-cv-01519 (C.D. Cal., filed Sept. 19, 2014); Ucmakli v. Bank

Of America Corporation, Case No. 2:14-cv-07340 (C.D. Cal., filed Sept. 19, 2014); Anderson v. American Credit

Acceptance Corporation et al, Case No. 1:14-cv-03032 (N.D. Ga., filed Sept. 22, 2014); Hernandez v. Global

Tel*Link Corporation, Case No. 8:14-cv-01536 (C.D. Cal., filed Sept. 23, 2014); Lawson v. Career Specialists, Inc.,

Case No. 2:14-cv-07473 (C.D. Cal., filed Sept. 24, 2014); Burton v. Bluestem Brands, Inc., Case No. 1:14-cv-

04362 (N.D. Cal., filed Sept. 26, 2014); Smith v. Piedmont Healthcare, Inc. et al, Case No. 1:14-cv-03103 (N.D.

Ga., filed Sept. 26, 2014); Burton v. Bluestem Brands, Inc., Case No. 3:14-cv-04362 (N.D. Cal., filed Sept. 26,

2014); Cortinas v. Ocwen Loan Servicing, LLC, Case No. 2:14-cv-07542 (C.D. Cal., filed Sept. 29, 2014)

TCPA Cases filed September 2014


Milsk v. Travel Options, Inc., Case No. 2:14-cv-07676 (C.D. Cal., filed Oct. 2, 2014); Craver v. Capital One Bank

(USA) N.A., Case No. 1:14-cv-02700 (D. Colo., filed Oct. 2, 2014); Fitzhenry v. Lily Management and Marketing

Company LLC et al, Case No. 2:14-cv-03866 (D.S.C., filed Oct. 3, 2014); Brunier v. Student Acceptance

Corporation, Case No. 5:14-cv-02044 (C.D. Cal., filed Oct. 3, 2014); Keith Bunch Associates, LLC v. LA-Z-BOY,

INC. et al, Case No. 1:14-cv-00850 (M.D.N.C., filed Oct. 7, 2014); Harper v. Capital One Financial Corporation,

Case No. 1:14-cv-04488 (N.D. Cal., filed Oct. 7, 2014); Eric B. Fromer Chiropractic, Inc. v. Lordex, Inc. et al, Case

No. 2:14-cv-07771 (C.D. Cal., filed Oct. 7, 2014); Harper v. Capital One Financial Corporation, Case No. 3:14-cv-

04488 (N.D. Cal., filed Oct. 7, 2014); Roicki v. Cenlar F.S.B. et al, Case No. 5:14-cv-00876 (W.D. Tex., filed Oct. 7,

2014); Roicki v. JPMorgan Chase & Co., Case No. 5:14-cv-00875 (W.D. Tex., filed Oct. 7, 2014); Kim v. Cellco

Partnership, Case No. 1:14-cv-00312 (N.D. Ind., filed Oct. 7, 2014); Soots v. Hyundai Motor America d/b/a

Hyundai Motor Finance, Case No. 8:14-cv-01621 (C.D. Cal., filed Oct. 7, 2014); Freyja v. Dun & Bradstreet, Inc. et

al, Case No. 2:14-cv-07831 (C.D. Cal., filed Oct. 8, 2014); Richie v. Durham and Durham LLP, Case No. 2:14-cv-

00368 (N.D. Ind., filed Oct. 8, 2014); Eicher v. GE Capital Bank, Case No. 5:14-cv-02101 (C.D. Cal., filed Oct. 10,

2014); Macatangay v. Regional Acceptance Corporation et al, Case No. 2:14-cv-02253 (D. Ariz., filed Oct. 10,

2014); Blotzer v. Validation Technologies, Inc., Case No. 8:14-cv-01654 (C.D. Cal., filed Oct. 11, 2014); Naddaf v.

DriveTime Automotive Group Incorporated et al, Case No. 2:14-cv-02266 (D. Ariz., filed Oct. 14, 2014); Simon, DC

v. RadNet, Management Inc. et al, Case No. 2:14-cv-07996 (C.D. Cal., filed Oct. 15, 2014); Coerver v. Linktech

Worldwide, Inc., Case No. 2:14-cv-07972 (C.D. Cal., filed Oct. 15, 2014); IN RE: Life Time Fitness, Inc., Telephone

Consumer Protection Act (TCPA) Litigation, Case No. 0:14-md-02564 (D. Minn., filed Oct. 15, 2014); Purcell v. T-

Mobile USA, Inc., Case No. 2:14-cv-02258 (C.D. Ill., filed Oct. 15, 2014); Kristensen v. Credit One Bank, N.A.,

Case No. 2:14-cv-07963 (C.D. Cal., filed Oct. 15, 2014); Brown v. Midwest Recovery Systems, LLC et al, Case

No. 4:14-cv-01757 (E.D. Mo., filed Oct. 16, 2014); Santander Consumer USA Inc. et al, Case No. 8:14-cv-01677

(C.D. Cal., filed Oct. 16, 2014); Tauro vs Convergent Outsourcing, Inc., Case No. 3:14-cv-01528 (D. Conn., filed

Oct. 16, 2014); Perry v. Capital One et al, Case No. 4:14-cv-02413 (D. Ariz., filed Oct. 16, 2014); Vanderpoel v.

DriveTime Automotive Group Incorporated et al, Case No. 2:14-cv-02295 (D. Ariz., filed Oct. 16, 2014)

TCPA Cases filed October 2014


Justin Barshaw v. Jefferson Capital Systems, LLC, Case No. 2:14-cv-08080 (C.D. Cal., filed Oct. 17, 2014);

Blankenship v. Medicredit, Inc., Case No. 5:14-cv-02138 (C.D. Cal., filed Oct. 17, 2014); Barshaw v. Jefferson

Capital Systems, LLC, Case No. 5:14-cv-02137 (C.D. Cal., filed Oct. 17, 2014); Konovalov v. Revenue

Enterprises, LLC, Case No. 1:14-cv-02831 (D. Colo., filed Oct. 17, 2014); Perry v. Navient Solutions Incorporated

et al, Case No. 4:14-cv-02420 (D. Ariz., filed Oct. 20, 2014); Dietz v. Midland Credit Management Inc, Case No.

3:14-cv-05837 (W.D. Wash., filed Oct. 21, 2014); Hebbe v. Northcentral University Incorporated et al, Case No.

3:14-cv-08202 (D. Ariz., filed Oct. 21, 2014); Ehlinger v. CoolTrade, Inc. et al, Case No. 4:14-cv-02998 (S.D. Tex.,

filed Oct. 21, 2014); Byrd v. Equinox Holdings, Inc., Case No. 2:14-cv-08226 (C.D. Cal., filed Oct. 23, 2014); Jones

v. American Credit Acceptance Corporation et al, Case No. 4:14-cv-04130 (D.S.C., filed Oct. 23, 2014); Fox v.

Paypal, Inc., Case No. 2:14-cv-08264 (C.D. Cal., filed Oct. 24, 2014); Doyle v. Nationstar Mortgage LLC, Case No.

4:14-cv-00679 (E.D. Tex., filed Oct. 24, 2014); Barrientos v. Optio Solutions LLC, Case No. 2:14-cv-08287 (C.D.

Cal., filed Oct. 24, 2014); Shahriar Noorparvar v. Paypal, Inc., Case No. 2:14-cv-08280 (C.D. Cal., filed Oct. 24,

2014); Robbins v. Affiliate Masters LLC et al, Case No. 2:14-cv-08307 (C.D. Cal., filed Oct. 27, 2014); Pecora v.

Santander Consumer USA, Inc., Case No. 5:14-cv-04751 (N.D. Cal., filed Oct. 27, 2014); Latz v. Bridgepoint

Education d/b/a Ashford University et al, Case No. 3:14-cv-02386 (N.D. Ohio, filed Oct. 27, 2014); Johnson et al v.

Synchrony Bank, Case No. 1:14-cv-04201 (D.S.C., filed Oct. 28, 2014); Whaley v. Seas & Associates LLC, Case

No. 2:14-cv-02394 (D. Ariz., filed Oct. 28, 2014); Mcwilliams vs. CitiFinancial Inc., Case No. 2:14-cv-01001 (E.D.

Tex., filed Oct. 28, 2014); Willis v. Degreesearch, LLC, Case No. 2:14-cv-08396 (C.D. Cal., filed Oct. 29, 2014);

Robinson v. Convergent Outsourcing, Case No. 3:14-cv-01606 (D. Conn., filed Oct. 29, 2014); Gonzalez v.

Wilshire Consumer Credit, Case No. 5:14-cv-02224 (C.D. Cal., filed Oct. 29, 2014); Calderon v. United Collection

Bureau, Inc., Case No. 2:14-cv-08393 (C.D. Cal., filed Oct. 29, 2014); Semnar et al, Case No. 8:14-cv-01733 (C.D.

Cal., filed Oct. 29, 2014); Zaenger v. Weston Distance Learning d/b/a One and One Marketing, Case No. 1:14-cv-

02932 (D. Conn., filed Oct. 29, 2014); Abouriche v. FMA Alliance, Ltd., Case No. 8:14-cv-01742 (C.D. Cal., filed

Oct. 30, 2014); Hunter v. AR STRAT et al, Case No. 5:14-cv-02232 (C.D. Cal., filed Oct. 30, 2014); Garcia-

Ordonez v. Viking Client Services, Inc., Case No. 2:14-cv-08425 (C.D. Cal., filed Oct. 30, 2014)

TCPA Cases filed October 2014


Pfening v. Go Green Education, Case No. 2:14-cv-08422 (C.D. Cal., filed Oct. 30, 2014); Lawson v. NYSA

Corporation, Case No. 2:14-cv-08401 (C.D. Cal., filed Oct. 30, 2014); Blotzer v. Paychex, Inc., Case No. 8:14-cv-

01736 (C.D. Cal., filed Oct. 30, 2014); VanHoosier v. Synchrony Bank f/k/a GE Capital Retail Bank et al, Case No.

3:14-cv-02425 (N.D. Ohio, filed Oct. 31, 2014); Moore v. Enhanced Recovery Company, LLC, Case No. 1:14-cv-

02424 (N.D. Ohio, filed Oct. 31, 2014); Torrez v. Synchrony Bank f/k/a GE Capital Retail Bank , Case No. 1:14-cv-

02964 (D. Conn., filed Oct. 31, 2014); Ashby v. Westlake Financial, Case No. 2:14-cv-08455 (C.D. Cal., filed Oct.

31, 2014); Navarro v. SCE Federal Credit Union, Case No. 2:14-cv-08493 (C.D. Cal., filed Oct. 31, 2014); Ortiz v.

CMRE Financial Services Incorporated, Case No. 2:14-cv-02437 (D. Ariz., filed Nov. 3, 2014); Lewis v.

Casting360, LLC et al, Case No. 3:14-cv-04860 (N.D. Cal., filed Nov. 3, 2014); Wilson v. Synchrony Bank f/k/a GE

Capital Retail Bank, Case No. 4:14-cv-01850 (E.D. Mo., filed Nov. 3, 2014); Lewis v. Casting360, LLC et al, Case

No. 4:14-cv-04860 (N.D. Cal., filed Nov. 3, 2014); Hemphill v. Wells Fargo Bank NA, Case No. 2:14-cv-02448 (D.

Ariz., filed Nov. 4, 2014); Neuer v. World Class Technology Corporation d/b/a Ortho Classic , Case No. 2:14-cv-

02559 (D. Kan., filed Nov. 4, 2014); Dutro v. Bluestem Brands, Inc., Case No. 3:14-cv-04881 (N.D. Cal., filed Nov.

4, 2014); Wynne v. Ally Financial, Inc., Case No. 4:14-cv-03147 (S.D. Tex., filed Nov. 4, 2014); Hofer v. Synchrony

Bank, Case No. 4:14-cv-01865 (E.D. Mo., filed Nov. 4, 2014); Doyley v. Synchrony Bank f/k/a GE Capital Retail

Bank, Case No. 4:14-cv-03143 (S.D. Tex., filed Nov. 4, 2014); Singh v. Titan Fitness Holdings, LLC dba Fitness

Connection, Case No. 4:14-cv-03141 (S.D. Tex., filed Nov. 4, 2014); Dutro v. Bluestem Brands, Inc., Case No.

4:14-cv-04881 (N.D. Cal., filed Nov. 4, 2014); Kleiman v. Comcast Holdings Corporation, Case No. 1:14-cv-02998

(D. Colo., filed Nov. 5, 2014); Langhorne v. Dish Network, L.L.C., Case No. 1:14-cv-03600 (N.D. Ga., filed Nov. 7,

2014); Barron's Outfitters Inc v. Big Hairy Dog Information Systems et al, Case No. 3:14-cv-04335 (D.S.C., filed

Nov. 7, 2014); Redden v. Monitronics International, Inc., Case No. 5:14-cv-27757 (S.D.W. Va., filed Nov. 7, 2014);

Eric B. Fromer Chiropractic, Inc. v. Spendwell Health, Inc. et al, Case No. 2:14-cv-08728 (C.D. Cal., filed Nov. 10,

2014); Couser v. Allied Interstate, LLC, Case No. 5:14-cv-02311 (C.D. Cal., filed Nov. 11, 2014); Neuer v.

Futuredontics, Inc., Case No. 2:14-cv-02569 (D. Kan., filed Nov. 11, 2014)

TCPA Cases Filed October 2014 through

November 12, 2014


Across Industries

Financial Services

Hospitals/Health Care Systems

Colleges/University Systems

Consumer Products Manufacturers

Restaurants

Sports Teams

Social Networking Sites

Apparel Manufacturers

Pharmacies

Hotels and Resorts

Airlines

Big Box Retailers

Cruise Lines


It shall be unlawful for any person within the United States, or any person

outside the United States if the recipient is within the United States —

to make any call (other than a call made for emergency purposes or made

with the prior express consent of the called party) using any automatic

telephone dialing system or an artificial or prerecorded voice … to any

telephone number assigned to a paging service, cellular telephone service,

specialized mobile radio service, or other radio common carrier service, or

any service for which the called party is charged for the call …

47 U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1).

Across Borders


Uncapped statutory damages (untethered to any actual injury)

Statutory damages available for each call or text ($500 – $1500 per violation)

Require little or no pre-suit investigation

Recent Notable Settlements

Capital One – $75MM

AT&T – $45MM

HSBC – $40MM

Chase Bank USA – $34MM

Bank of America – $32MM

Explosion of TCPA Class Actions


Attacking the Pleadings

Failure to Plead Phone Number

Failure to Adequately Plead ATDS

Litigating Consent

Consent is an Affirmative Defense/Burden of Proof on the Defendant

No Good Faith Exception

Common Law Concepts of Consent and Revocation

Summary Judgment

Some Courts grant Summary Judgment on Definition of ATDS

Expert Testimony on what constitutes ATDS

Defending Against TCPA Claims


Is the class ascertainable?

Is it a fail-safe class?

Is there numerosity?

Cabrera v. Government Employees Ins. Co., Case No. 12-CV-61390 (S.D.

Fla.)

Do automated calls/faxes/texts satisfy commonality? Predominance?

Do statutory damages obviate the need to establish injury and causation?

Is the named plaintiff’s claim typical of the proposed class?

Is the named plaintiff an adequate class representative?

Labou v. Cellco Partnership, Case No. 13-cv-00844 (E.D. Cal.)

Can consent be proven on a class-wide basis?

Are TCPA Classes Being Certified?


Compare cases granting class certification:

Meyer v. Portfolio Recovery Assoc., 707 F.3d 1036 (9th Cir. 2012)

Chapman v. Wagener Equities, Inc., 2014 U.S. Dist. LEXIS 16866 (N.D. Ill.

Feb. 11, 2014)

With cases denying class certification:

Edwards v. Mobile Messgrs. Am., Inc., 2013 U.S. Dist. LEXIS 163950 (N.D. Cal. Nov. 18, 2013)

Balthazor v. Central Credit Servs., 2012 U.S. Dist. LEXIS 182275 (S.D. Fla.

Dec. 27, 2012)

Can Consent be Proven on Classwide Basis?


Rule 68 Offers of Judgment

“You cannot persist in suing after you’ve won.” Greisz v. Household Bank,

N.A., 176 F.3d 1012, 1015 (7th Cir. 1999) (Posner, J.)

Offers of Judgment as a TCPA Defense Strategy

Relief Sought

Circuit Split

Offers of Judgment


In re DISH Network, LLC, 28 F.C.C. Rcrd. 6574 (2013)

Declaratory Ruling

Vicarious Liability under Federal Common Law Principles of Agency:

Formal Agency

Apparent Authority

Ratification

FCC Weighs In On Vicarious Liability


Gomez v. Campbell-Ewald Co., No. 13-55486 (9th Cir. Sept. 19, 2014 )

Adopts FCC’s approach.

“[A] defendant may be held vicariously liable for TCPA violations where the

plaintiff establishes an agency relationship, as defined by federal common law,

between the defendant and a third-party caller.”

Vicarious liability is not limited to merchants; applies to third-party marketing consultants.

Decisions on Vicarious Liability in the Wake of

FCC Ruling


Motions to Dismiss – plausible allegations of agency:

Hartley-Culp v. Green Tree Servicing, LLC, 2014 U.S. Dist. LEXIS 145851

(M.D. Pa. Oct. 10, 2014)

Kristensen v. Credit Payment Servs., 2014 U.S. Dist. LEXIS 41696 (D. Ne.

March 26, 2014)

Motions for Summary Judgment – fact specific inquiry:

Granted: Keating v. Peterson’s Nelnet, LLC, 2014 U.S. Dist. LEXIS 64920

(N.D. Ohio May 12, 2014)

Denied: The Siding & Insulation Co. v. Combined Ins. Grp., Ltd., 2014 U.S.

Dist. LEXIS 54056 (N.D. Ohio. April 17, 2014)

Decisions on Vicarious Liability in the Wake of

FCC Ruling


TCPA Compliance/Risk Management Tips

1. Understand TCPA law and regulatory parameters and similar state statutes.

2. Monitor TCPA developments in jurisdictions where your company does

business.

3. Evaluate the technologies your company uses to communicate with

customers.

4. Review your prior express written consent forms. Are they FCC compliant?

5. Review your prior express oral consent procedures. Are they clear and

unambiguous?

6. Scrupulously adhere to the scope of consent given.

7. Retain all consent records and revocation thereof, e.g., wireless numbers.

8. Scrub for residential telephone numbers that are registered on the Federal Do

Not Call list.

9. Verify the type of phones in consumer contact lists and the current subscriber assigned to each phone number.


TCPA Compliance/Risk Management Tips

10. Review your third-party telemarketer agreements to ensure maximum

protection against potential vicarious liability.

11. Understand the scope of your insurance coverage for commercial liability for

TCPA and breach of privacy-related claims.

12. Develop and implement employee TCPA training programs. Update annually.

13. Understand TCPA rules regarding unsolicited fax advertisements, if you communicate with customers by facsimile.

14. Obtain third-party TCPA representations and warranties.

15. Make sure you are using a broad arbitration agreement with a class action

waiver.


Robin Hallagan

Squire Patton Boggs (US) LLP

Legal Training Manager

+1 216 479 8115

[email protected]

CLE Credit or Questions


Amy L. Brown

Leader - Class Action & Multijurisdictional Practice

Washington DC

+1 202 626 6707

[email protected]

Philip M. Oliss

Leader – Cleveland Litigation Team

Cleveland, OH

+1 216 479 8448

[email protected]

Monica S. Desai


Washington DC

+1 202 457 7535

[email protected]

Paul Besozzi


Washington DC

+1 202 457 5292

[email protected]

Thank You


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