TCPA Litigation Defense and Compliance Counseling

Litigation under the Telephone Consumer Protection Act (TCPA) — which regulates marketing by telephone and fax and prohibits certain automated calls and text messages — has increased dramatically in the last five years and has become increasingly high-stakes. Due to frequent changes and lack of clarity in the law, even well-intentioned companies can be caught off guard. Given that the TCPA provides penalties of $500-$1,500 for each call, text message, or fax that violates the statute, without any cap on aggregate damages, the exposure in a TCPA class action lawsuit can be catastrophic for a company without effective representation. That’s where McGuireWoods can help. McGuireWoods has extensive experience assisting its clients with the complexities of the TCPA and its associated regulations, both in litigation defense and compliance counseling.

Litigation Defense

McGuireWoods offers substantial experience successfully defending clients from a broad range of industries in TCPA class-action and single-plaintiff suits.
We have secured dismissals of cases with prejudice at the outset of litigation, have convinced opposing counsel to drop cases after exposing weaknesses, and have negotiated individual settlements of class action cases to minimize exposure. We have defeated class certification and have exposed deficiencies in the testimony of plaintiffs’ class experts. We also have negotiated favorable single-plaintiff and class-action settlements. We have litigated TCPA cases around the country, including Illinois, Florida, California, Pennsylvania, New York, Virginia, Michigan, Nevada, Minnesota, Texas, and North Carolina. After suit is filed, we have helped clients assess their insurance coverage for TCPA claims, and have represented clients in TCPA insurance coverage disputes. We also have represented our clients’ interests before the Federal Communications Commission (FCC), the agency responsible for implementing and interpreting the TCPA.

Compliance Counseling

McGuireWoods leverages our experience-based knowledge to help clients be proactive in their compliance efforts — to minimize risks before they turn into legal problems. We audit companies’ existing policies, programs and systems to identify any red flags and advise clients on how to resolve potential issues.

Clients also call on us for assistance before they put a system or practice in place to help them determine whether it presents a risk of TCPA-related challenges. We have helped companies identify areas of risk and have proposed solutions for risk mitigation, including by assessing the use of calling or texting equipment to determine whether it may be subject to the TCPA, drafting language to obtain consent for telemarketing and non-telemarketing calls, developing procedures for tracking consent and consent revocation, creating internal do-not-call policies, analyzing compliance with the regulations governing telemarketing, and advising on many other issues related to automated calling practices, artificial voice calls, prerecorded messages, text messages, fax advertising, and the federal do-not-call registry.


Experience

  • REPRESENTATIVE MATTER

    Telephone Consumer Protection Act (TCPA) allegations

    Defeated a class certification motion on behalf of a consumer finance company related to Telephone Consumer Protection Act (TCPA) allegations in the 7th Circuit. The court ruled that the class could not be ascertained, the class definition constituted an improper “fail-safe” class, and the plaintiff failed to establish the Rule 23 requirements of commonality, predominance, adequacy, typicality and superiority. The court also held that the plaintiff did not establish numerosity, an unusual element for a court to decide in ruling against a class plaintiff.

  • REPRESENTATIVE MATTER

    Favorable result in petition before FCC

    Successfully petitioned the FCC on behalf of a client to obtain a retroactive waiver regarding the client’s fax opt-out language.

  • REPRESENTATIVE MATTER

    TCPA compliance counseling for major health plan

    Assessed a health plan’s processes for obtaining consent from consumers to receive automated calls and text messages and proposed comprehensive revisions to documents, telephone scripts, and website language.

  • REPRESENTATIVE MATTER

    Compliance audit of market research company’s outbound calling vendors

    Conducted a nationwide audit of a market research company’s outside call vendors to evaluate do-not-call and cell phone scrubbing procedures, and to assess whether the technology used by the vendors for manually dialing cell phone numbers could be considered an ATDS.

  • REPRESENTATIVE MATTER

    Novel consent arguments result in favorable class action settlement brought against auto finance company under TCPA

    Favorably settled a putative class action brought under the Telephone Consumer Protection Act alleging that a leading auto finance company failed to obtain prior express consent before making automated calls to the cell phones of the references listed by the borrowers in their loan applications, raising novel issues regarding “consent by intermediary,” i.e., whether the references authorized the borrowers to provide their cell phone numbers.

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