Have a Phone? Have a Customer? Your Company May Be a Target for TCPA Litigation. November 18, 2014

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1 Have a Phone? Have a Customer? Your Company May Be a Target for TCPA Litigation November 18, 2014

2 Today s Presenters Monica S. Desai Partner, Communications Washington DC Amy L. Brown Leader Class Action & Multijurisdictional Practice Washington DC Paul Besozzi Partner, Communications Washington DC Philip M. Oliss Leader Cleveland Litigation Team Cleveland, OH

3 Background on the TCPA

4 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 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. 4

5 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? 5

6 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 (a)(1). 6

7 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). 7

8 Key Areas of Controversy What is capacity? Are predictive dialers automatically an ATDS under the statute? What about preview dialers? 8

9 TCPA Statutory Language 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 (a)(1). 9

10 Who is the Called Party? "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. 10

11 October 30, 2014: FCC Fax Advertisements Order 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 11

12 Prior Express Written Consent for Telemarketing

13 TCPA Rules Prior Express Written Consent 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. 13

14 Applicability 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. 14

15 Exemption for Prerecorded Informational Calls 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. 15

16 COMPLIANCE: Prior Express Written Consent and Other TCPA Requirements

17 What Does Prior Express Written Consent Mean? 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. 17

18 What Does Signed 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, , keypad touch, or voice recording. 18

19 What Constitutes Clear and Conspicuous Disclosure? 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. 19

20 Where Should a Disclosure be Made? 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. 20

21 Sample Compliant Disclosure 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 [ ]. 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. 21

22 Burden is on the Seller 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. 22

23 Evidence of Written Consent 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. 23

24 TCPA Litigation

25 TCPA Cases filed September 2014 Tarizzo v. American Leisure Group, LLC, Case No. 2:14-cv (C.D. Cal., filed Sept. 2, 2014); Ranekouhi v. American Medical Collection Agency aka Retrieval-Masters Creditors Bureau, Inc., Case No. 8:14-cv (C.D. Cal., filed Sept. 2, 2014); Cruz v. I.Q. Data International, Inc., Case No. 3:14-cv (N.D. Cal., filed Sept. 2, 2014); Barnes v. Santander Consumer USA, Inc., Case No. 1:14-cv (N.D. Ohio, filed Sept. 2, 2014); Violette Espinoza v. Caribbean Cruise Line Inc et al, Case No. 5:14-cv (C.D. Cal., filed Sept. 3, 2014); Luster v. First Premier Bank, Case No. 1:14-cv (N.D. Ga., filed Sept. 3, 2014); Michelle Mock v. Kohl's Department Stores, Inc. et al, Case No. 8:14-cv (C.D. Cal., filed Sept. 3, 2014); Carls v. Law Office of Joe Pezzuto LLC, Case No. 2:14-cv (D. Ariz., filed Sept. 3, 2014); Shields v. Ultimate Vacation Group LLC d/b/a Royal Bahamas Cruise Line, Case No. 3:14-cv (S.D. Tex., filed Sept. 3, 2014); Martin v. DirecTV, Inc., Case No. 2:14-cv (C.D. Cal., filed Sept. 3, 2014); Gregory v. Integrity Solution Services, Inc., Case No. 5:14-cv (C.D. Cal., filed Sept. 4, 2014); Goetz v. Quality Resources, Inc., Case No. 5:14-cv (N.D.N.Y., filed Sept. 5, 2014); ORTIZ v. MIDLAND FUNDING, LLC, Case No. 2:14-cv (E.D. Pa., filed Sept. 5, 2014); Doug Hauck v. Culver Capital Group, Inc. et al, Case No. 8:14-cv (C.D. Cal., filed Sept. 8, 2014); Tami Dube v. Student Loan Services Managers et al, Case No. 8:14-cv (C.D. Cal., filed Sept. 8, 2014); Alan L. Laub, DDS, Inc. v. Den-Mat Holdings, LLC et al, Case No. 2:14-cv (C.D. Cal., filed Sept. 8, 2014); Geismann, et al. v. American HomePatient, Inc., et al., Case No. 4:14-cv (E.D. Mo., filed Sept. 8, 2014); Moore v. Family Dollar Stores, Inc., Case No. 4:14-cv (E.D. Mo., filed Sept. 9, 2014); Luna v. MediaFriends, Inc. dba Haywire Wireless, Case No. 2:14-cv (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 (C.D. Cal., filed Sept. 9, 2014); Shoemaker v. One on One Marketing, LLC et al, Case No. 4:14-cv (N.D. Ga., filed Sept. 11, 2014); Kelly v. Kohl s Department Stores, Inc. (S.D. Ind. 1:14-cv , filed Sept. 12, 2014) 25

26 TCPA Cases filed September 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 (S.D. Ind., filed Sept. 16, 2014); Benenati v. Westlake Financial, Case No. 2:14-cv (C.D. Cal., filed Sept. 16, 2014); Mayfield v. First Premier Bank et al, Case No. 5:14-cv (N.D. Ohio, filed Sept. 16, 2014); Collier v. Capital One Bank (USA), N.A., Case No. 2:14-cv (C.D. Cal., filed Sept. 16, 2014); Goins v. Verizon Wireless et al, Case No. 0:14-cv (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 (C.D. Cal., filed Sept. 17, 2014); Abea v. Pioneer Credit Recovery, Inc., Case No. 2:14-cv (C.D. Cal., filed Sept. 17, 2014); Freeman v. Alliance Health Networks, Inc., Case No. 2:14-cv (C.D. Cal., filed Sept. 17, 2014); Goode v. DISH Network LLC et al, Case No. 7:14-cv (D.S.C., filed Sept. 17, 2014); Tsai v. Cellco Partnership et al, Case No. 3:14-cv (N.D. Cal., filed Sept. 17, 2014); Orea v. Arbitron, Inc., Case No. 3:14- cv (N.D. Cal., filed Sept. 18, 2014); Fitzhenry v. Independent Order of Foresters, The et al, Case No. 2:14- cv (D.S.C., filed Sept. 18, 2014); Williams v. Convergent Outsourcing, Inc., Case No. 3:14-cv (D. Conn., filed Sept. 18, 2014); Agazanof v. Five Four Group, LLC, Case No. 2:14-cv (C.D. Cal., filed Sept. 18, 2014); Johnson et al v. Capital One Bank USA NA, Case No. 1:14-cv (D.S.C., filed Sept. 18, 2014); Alexander Braurman v. AGR Group Inc, Case No. 8:14-cv (C.D. Cal., filed Sept. 19, 2014); Ucmakli v. Bank Of America Corporation, Case No. 2:14-cv (C.D. Cal., filed Sept. 19, 2014); Anderson v. American Credit Acceptance Corporation et al, Case No. 1:14-cv (N.D. Ga., filed Sept. 22, 2014); Hernandez v. Global Tel*Link Corporation, Case No. 8:14-cv (C.D. Cal., filed Sept. 23, 2014); Lawson v. Career Specialists, Inc., Case No. 2:14-cv (C.D. Cal., filed Sept. 24, 2014); Burton v. Bluestem Brands, Inc., Case No. 1:14-cv (N.D. Cal., filed Sept. 26, 2014); Smith v. Piedmont Healthcare, Inc. et al, Case No. 1:14-cv (N.D. Ga., filed Sept. 26, 2014); Burton v. Bluestem Brands, Inc., Case No. 3:14-cv (N.D. Cal., filed Sept. 26, 2014); Cortinas v. Ocwen Loan Servicing, LLC, Case No. 2:14-cv (C.D. Cal., filed Sept. 29, 2014) 26

27 TCPA Cases filed October 2014 Milsk v. Travel Options, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 2, 2014); Craver v. Capital One Bank (USA) N.A., Case No. 1:14-cv (D. Colo., filed Oct. 2, 2014); Fitzhenry v. Lily Management and Marketing Company LLC et al, Case No. 2:14-cv (D.S.C., filed Oct. 3, 2014); Brunier v. Student Acceptance Corporation, Case No. 5:14-cv (C.D. Cal., filed Oct. 3, 2014); Keith Bunch Associates, LLC v. LA-Z-BOY, INC. et al, Case No. 1:14-cv (M.D.N.C., filed Oct. 7, 2014); Harper v. Capital One Financial Corporation, Case No. 1:14-cv (N.D. Cal., filed Oct. 7, 2014); Eric B. Fromer Chiropractic, Inc. v. Lordex, Inc. et al, Case No. 2:14-cv (C.D. Cal., filed Oct. 7, 2014); Harper v. Capital One Financial Corporation, Case No. 3:14-cv (N.D. Cal., filed Oct. 7, 2014); Roicki v. Cenlar F.S.B. et al, Case No. 5:14-cv (W.D. Tex., filed Oct. 7, 2014); Roicki v. JPMorgan Chase & Co., Case No. 5:14-cv (W.D. Tex., filed Oct. 7, 2014); Kim v. Cellco Partnership, Case No. 1:14-cv (N.D. Ind., filed Oct. 7, 2014); Soots v. Hyundai Motor America d/b/a Hyundai Motor Finance, Case No. 8:14-cv (C.D. Cal., filed Oct. 7, 2014); Freyja v. Dun & Bradstreet, Inc. et al, Case No. 2:14-cv (C.D. Cal., filed Oct. 8, 2014); Richie v. Durham and Durham LLP, Case No. 2:14-cv (N.D. Ind., filed Oct. 8, 2014); Eicher v. GE Capital Bank, Case No. 5:14-cv (C.D. Cal., filed Oct. 10, 2014); Macatangay v. Regional Acceptance Corporation et al, Case No. 2:14-cv (D. Ariz., filed Oct. 10, 2014); Blotzer v. Validation Technologies, Inc., Case No. 8:14-cv (C.D. Cal., filed Oct. 11, 2014); Naddaf v. DriveTime Automotive Group Incorporated et al, Case No. 2:14-cv (D. Ariz., filed Oct. 14, 2014); Simon, DC v. RadNet, Management Inc. et al, Case No. 2:14-cv (C.D. Cal., filed Oct. 15, 2014); Coerver v. Linktech Worldwide, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 15, 2014); IN RE: Life Time Fitness, Inc., Telephone Consumer Protection Act (TCPA) Litigation, Case No. 0:14-md (D. Minn., filed Oct. 15, 2014); Purcell v. T- Mobile USA, Inc., Case No. 2:14-cv (C.D. Ill., filed Oct. 15, 2014); Kristensen v. Credit One Bank, N.A., Case No. 2:14-cv (C.D. Cal., filed Oct. 15, 2014); Brown v. Midwest Recovery Systems, LLC et al, Case No. 4:14-cv (E.D. Mo., filed Oct. 16, 2014); Santander Consumer USA Inc. et al, Case No. 8:14-cv (C.D. Cal., filed Oct. 16, 2014); Tauro vs Convergent Outsourcing, Inc., Case No. 3:14-cv (D. Conn., filed Oct. 16, 2014); Perry v. Capital One et al, Case No. 4:14-cv (D. Ariz., filed Oct. 16, 2014); Vanderpoel v. DriveTime Automotive Group Incorporated et al, Case No. 2:14-cv (D. Ariz., filed Oct. 16, 2014) 27

28 TCPA Cases filed October 2014 Justin Barshaw v. Jefferson Capital Systems, LLC, Case No. 2:14-cv (C.D. Cal., filed Oct. 17, 2014); Blankenship v. Medicredit, Inc., Case No. 5:14-cv (C.D. Cal., filed Oct. 17, 2014); Barshaw v. Jefferson Capital Systems, LLC, Case No. 5:14-cv (C.D. Cal., filed Oct. 17, 2014); Konovalov v. Revenue Enterprises, LLC, Case No. 1:14-cv (D. Colo., filed Oct. 17, 2014); Perry v. Navient Solutions Incorporated et al, Case No. 4:14-cv (D. Ariz., filed Oct. 20, 2014); Dietz v. Midland Credit Management Inc, Case No. 3:14-cv (W.D. Wash., filed Oct. 21, 2014); Hebbe v. Northcentral University Incorporated et al, Case No. 3:14-cv (D. Ariz., filed Oct. 21, 2014); Ehlinger v. CoolTrade, Inc. et al, Case No. 4:14-cv (S.D. Tex., filed Oct. 21, 2014); Byrd v. Equinox Holdings, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 23, 2014); Jones v. American Credit Acceptance Corporation et al, Case No. 4:14-cv (D.S.C., filed Oct. 23, 2014); Fox v. Paypal, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 24, 2014); Doyle v. Nationstar Mortgage LLC, Case No. 4:14-cv (E.D. Tex., filed Oct. 24, 2014); Barrientos v. Optio Solutions LLC, Case No. 2:14-cv (C.D. Cal., filed Oct. 24, 2014); Shahriar Noorparvar v. Paypal, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 24, 2014); Robbins v. Affiliate Masters LLC et al, Case No. 2:14-cv (C.D. Cal., filed Oct. 27, 2014); Pecora v. Santander Consumer USA, Inc., Case No. 5:14-cv (N.D. Cal., filed Oct. 27, 2014); Latz v. Bridgepoint Education d/b/a Ashford University et al, Case No. 3:14-cv (N.D. Ohio, filed Oct. 27, 2014); Johnson et al v. Synchrony Bank, Case No. 1:14-cv (D.S.C., filed Oct. 28, 2014); Whaley v. Seas & Associates LLC, Case No. 2:14-cv (D. Ariz., filed Oct. 28, 2014); Mcwilliams vs. CitiFinancial Inc., Case No. 2:14-cv (E.D. Tex., filed Oct. 28, 2014); Willis v. Degreesearch, LLC, Case No. 2:14-cv (C.D. Cal., filed Oct. 29, 2014); Robinson v. Convergent Outsourcing, Case No. 3:14-cv (D. Conn., filed Oct. 29, 2014); Gonzalez v. Wilshire Consumer Credit, Case No. 5:14-cv (C.D. Cal., filed Oct. 29, 2014); Calderon v. United Collection Bureau, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 29, 2014); Semnar et al, Case No. 8:14-cv (C.D. Cal., filed Oct. 29, 2014); Zaenger v. Weston Distance Learning d/b/a One and One Marketing, Case No. 1:14-cv (D. Conn., filed Oct. 29, 2014); Abouriche v. FMA Alliance, Ltd., Case No. 8:14-cv (C.D. Cal., filed Oct. 30, 2014); Hunter v. AR STRAT et al, Case No. 5:14-cv (C.D. Cal., filed Oct. 30, 2014); Garcia- Ordonez v. Viking Client Services, Inc., Case No. 2:14-cv (C.D. Cal., filed Oct. 30, 2014) 28

29 TCPA Cases Filed October 2014 through November 12, 2014 Pfening v. Go Green Education, Case No. 2:14-cv (C.D. Cal., filed Oct. 30, 2014); Lawson v. NYSA Corporation, Case No. 2:14-cv (C.D. Cal., filed Oct. 30, 2014); Blotzer v. Paychex, Inc., Case No. 8:14-cv (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 (N.D. Ohio, filed Oct. 31, 2014); Moore v. Enhanced Recovery Company, LLC, Case No. 1:14-cv (N.D. Ohio, filed Oct. 31, 2014); Torrez v. Synchrony Bank f/k/a GE Capital Retail Bank, Case No. 1:14-cv (D. Conn., filed Oct. 31, 2014); Ashby v. Westlake Financial, Case No. 2:14-cv (C.D. Cal., filed Oct. 31, 2014); Navarro v. SCE Federal Credit Union, Case No. 2:14-cv (C.D. Cal., filed Oct. 31, 2014); Ortiz v. CMRE Financial Services Incorporated, Case No. 2:14-cv (D. Ariz., filed Nov. 3, 2014); Lewis v. Casting360, LLC et al, Case No. 3:14-cv (N.D. Cal., filed Nov. 3, 2014); Wilson v. Synchrony Bank f/k/a GE Capital Retail Bank, Case No. 4:14-cv (E.D. Mo., filed Nov. 3, 2014); Lewis v. Casting360, LLC et al, Case No. 4:14-cv (N.D. Cal., filed Nov. 3, 2014); Hemphill v. Wells Fargo Bank NA, Case No. 2:14-cv (D. Ariz., filed Nov. 4, 2014); Neuer v. World Class Technology Corporation d/b/a Ortho Classic, Case No. 2:14-cv (D. Kan., filed Nov. 4, 2014); Dutro v. Bluestem Brands, Inc., Case No. 3:14-cv (N.D. Cal., filed Nov. 4, 2014); Wynne v. Ally Financial, Inc., Case No. 4:14-cv (S.D. Tex., filed Nov. 4, 2014); Hofer v. Synchrony Bank, Case No. 4:14-cv (E.D. Mo., filed Nov. 4, 2014); Doyley v. Synchrony Bank f/k/a GE Capital Retail Bank, Case No. 4:14-cv (S.D. Tex., filed Nov. 4, 2014); Singh v. Titan Fitness Holdings, LLC dba Fitness Connection, Case No. 4:14-cv (S.D. Tex., filed Nov. 4, 2014); Dutro v. Bluestem Brands, Inc., Case No. 4:14-cv (N.D. Cal., filed Nov. 4, 2014); Kleiman v. Comcast Holdings Corporation, Case No. 1:14-cv (D. Colo., filed Nov. 5, 2014); Langhorne v. Dish Network, L.L.C., Case No. 1:14-cv (N.D. Ga., filed Nov. 7, 2014); Barron's Outfitters Inc v. Big Hairy Dog Information Systems et al, Case No. 3:14-cv (D.S.C., filed Nov. 7, 2014); Redden v. Monitronics International, Inc., Case No. 5:14-cv (S.D.W. Va., filed Nov. 7, 2014); Eric B. Fromer Chiropractic, Inc. v. Spendwell Health, Inc. et al, Case No. 2:14-cv (C.D. Cal., filed Nov. 10, 2014); Couser v. Allied Interstate, LLC, Case No. 5:14-cv (C.D. Cal., filed Nov. 11, 2014); Neuer v. Futuredontics, Inc., Case No. 2:14-cv (D. Kan., filed Nov. 11, 2014) 29

30 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 30

31 Across Borders 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 (a)(1). 31

32 Explosion of TCPA Class Actions 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 32

33 Defending Against TCPA Claims 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 33

34 Are TCPA Classes Being Certified? Is the class ascertainable? Is it a fail-safe class? Is there numerosity? Cabrera v. Government Employees Ins. Co., Case No. 12-CV (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 (E.D. Cal.) Can consent be proven on a class-wide basis? 34

35 Can Consent be Proven on Classwide Basis? 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 (N.D. Ill. Feb. 11, 2014) With cases denying class certification: Edwards v. Mobile Messgrs. Am., Inc., 2013 U.S. Dist. LEXIS (N.D. Cal. Nov. 18, 2013) Balthazor v. Central Credit Servs., 2012 U.S. Dist. LEXIS (S.D. Fla. Dec. 27, 2012) 35

36 Offers of Judgment 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 36

37 FCC Weighs In On Vicarious Liability In re DISH Network, LLC, 28 F.C.C. Rcrd (2013) Declaratory Ruling Vicarious Liability under Federal Common Law Principles of Agency: Formal Agency Apparent Authority Ratification 37

38 Decisions on Vicarious Liability in the Wake of FCC Ruling Gomez v. Campbell-Ewald Co., No (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. 38

39 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 (M.D. Pa. Oct. 10, 2014) Kristensen v. Credit Payment Servs., 2014 U.S. Dist. LEXIS (D. Ne. March 26, 2014) Motions for Summary Judgment fact specific inquiry: Granted: Keating v. Peterson s Nelnet, LLC, 2014 U.S. Dist. LEXIS (N.D. Ohio May 12, 2014) Denied: The Siding & Insulation Co. v. Combined Ins. Grp., Ltd., 2014 U.S. Dist. LEXIS (N.D. Ohio. April 17, 2014) 39

40 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. 40

41 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. 41

42 CLE Credit or Questions Robin Hallagan Squire Patton Boggs (US) LLP Legal Training Manager

43 Thank You Monica S. Desai Partner, Communications Washington DC Amy L. Brown Leader - Class Action & Multijurisdictional Practice Washington DC Paul Besozzi Partner, Communications Washington DC Philip M. Oliss Leader Cleveland Litigation Team Cleveland, OH

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