have a phone? have a customer? your company may be a target …/media/files/insights/... · 2014....
TRANSCRIPT
Have a Phone? Have a Customer? Your Company May Be a Target
for TCPA Litigation
November 18, 2014
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Amy L. Brown
Leader – Class Action & Multijurisdictional Practice
Washington DC
+1 202 626 6707
Philip M. Oliss
Leader – Cleveland Litigation Team
Cleveland, OH
+1 216 479 8448
Monica S. Desai
Partner, Communications
Washington DC
+1 202 457 7535
Paul Besozzi
Partner, Communications
Washington DC
+1 202 457 5292
Today’s Presenters
Background on the TCPA
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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.
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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?
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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).
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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).
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What is capacity?
Are “predictive dialers” automatically an ATDS under the statute?
What about “preview dialers”?
Key Areas of Controversy
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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
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"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”?
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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
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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
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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
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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
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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?
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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?
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“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?”
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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?
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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?
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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
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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
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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
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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
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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.
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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.
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Robin Hallagan
Squire Patton Boggs (US) LLP
Legal Training Manager
+1 216 479 8115
CLE Credit or Questions
43 squirepattonboggs.com
Amy L. Brown
Leader - Class Action & Multijurisdictional Practice
Washington DC
+1 202 626 6707
Philip M. Oliss
Leader – Cleveland Litigation Team
Cleveland, OH
+1 216 479 8448
Monica S. Desai
Partner, Communications
Washington DC
+1 202 457 7535
Paul Besozzi
Partner, Communications
Washington DC
+1 202 457 5292
Thank You
44 squirepattonboggs.com
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