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.


TCPA

CONTACTS

David L. Hartsell Partner T: +1 312 750 8898
Sarah A. Zielinski Partner T: +1 312 849 8288
Marc A. Lackner Partner T: +1 415 844 1974
Results 1-10 of 10
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

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

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

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.
Representative Matter

Voluntary dismissal of TCPA class action involving “one-click” dialing

Secured the voluntary dismissal of a putative TCPA class action against a market research company after convincing plaintiff’s counsel through informal discovery that the cell phone calls at issue were not placed by an ATDS.
Representative Matter

Class certification defeated using a novel theory that class could not be ascertained

Defeated class certification in a nationwide TCPA default servicing class action in which plaintiffs sought to certify a class of non-customers based on a novel theory of TCPA “prior express consent.” The court rejected the plaintiffs legal theory on consent, and adopted our argument that the identity of the “called parties” in a non-customer class could not be reliably ascertained. The Seventh Circuit declined to review the decision.
Representative Matter

Dismissal with prejudice of TCPA claims where calls did not constitute telemarketing

Secured dismissal with prejudice of a putative nationwide class action alleging that a market research company violated the TCPA by calling individuals listed on the federal do-not-call registry to invite them to participate in surveys. The court held that the do-not-call regulations were not intended to apply to legitimate market research survey calls that do not constitute telemarketing.
Representative Matter

Favorable resolution of nationwide MDL on behalf of national bank

Negotiated what was at that time the largest TCPA settlement in history, resolving six nationwide putative class actions consolidated in an MDL proceeding against a national bank. This series of class actions involved allegations of defendants' use of autodialers and prerecorded messages sent to customers' cell phones without customers' prior express consent.
Representative Matter

Favorable settlement of TCPA claims and dismissal of email claims against software company

Favorably resolved a putative nationwide class action against a software company alleging that the company’s telemarketing and email marketing practices violated the TCPA and the Illinois E-Mail Act. The court granted a motion to dismiss the email claims based on federal preemption and the parties reached a class-wide settlement on the TCPA claims well below the client’s potential exposure.
Results 1-10 of 10
Tammy L Adkins Tammy L. Adkins
Counsel
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818

T: +1 312 750 5727
F: +1 312 920 6193
vCard
Adrian Canzoneri Adrian Canzoneri
Associate
Two Embarcadero Center
Suite 1300
San Francisco, CA 94111-3821

T: +1 415 844 1985
F: +1 415 844 1921
vCard
Issac deVyver K. Issac deVyver
Partner
Tower Two-Sixty
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222-3142

T: +1 412 667 7988
F: +1 412 667 7976
vCard
Shawna English Shawna J. English
Associate
Tower Two-Sixty
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222-3142

T: +1 412 667 7922
F: +1 412 667 7972
vCard
Amy Starinieri Amy Starinieri Gilbert
Associate
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818

T: +1 312 750 8673
F: +1 312 698 4563
vCard
Akiesha Gilcrist Akiesha R. Gilcrist
Associate
Tower Two-Sixty
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222-3142

T: +1 412 667 7938
F: +1 412 667 7942
vCard
David L Hartsell David L. Hartsell
Partner
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818

T: +1 312 750 8898
F: +1 312 920 6766
vCard
Sara F Holladay-Tobias Sara F. Holladay-Tobias
Partner
Bank of America Tower
50 North Laura Street
Suite 3300
Jacksonville, FL 32202-3661

T: +1 904 798 2662
F: +1 904 360 6317
vCard
Photo of Elliot Katz Elliot Katz
Partner
Two Embarcadero Center
Suite 1300
San Francisco, CA 94111-3821

T: +1 415 844 1963
F: +1 415 844 1939
vCard
Marc Lackner Marc A. Lackner
Partner
Two Embarcadero Center
Suite 1300
San Francisco, CA 94111-3821

T: +1 415 844 1974
F: +1 415 844 1917
vCard
Laura A Lange Laura A. Lange
Associate
Tower Two-Sixty
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222-3142

T: +1 412 667 7941
F: +1 412 667 7961
vCard
Justin Opitz Justin R. Opitz
Partner
2000 McKinney Avenue
Suite 1400
Dallas, TX 75201

T: +1 214 932 6471
F: +1 214 273 7487
vCard
H. Carter Redd H. Carter Redd
Senior Counsel
Gateway Plaza
800 East Canal Street
Richmond, VA 23219-3916

T: +1 804 775 1155
F: +1 804 698 2144
vCard
David S. Reidy
Partner
Two Embarcadero Center
Suite 1300
San Francisco, CA 94111-3821

T: +1 415 844 1969
F: +1 415 844 1913
vCard
Emily Rottmann Emily Y. Rottmann
Associate
Bank of America Tower
50 North Laura Street
Suite 3300
Jacksonville, FL 32202-3661

T: +1 904 798 3224
F: +1 904 798 3263
vCard
Seth A Schaeffer Seth A. Schaeffer
Partner
Gateway Plaza
800 East Canal Street
Richmond, VA 23219-3916

T: +1 804 775 1174
F: +1 804 698 2167
vCard
Mark E. Shaffer
Associate
1750 Tysons Boulevard
Suite 1800
Tysons, VA 22102-4215

T: +1 703 712 5438
F: +1 703 712 5188
vCard
Jarrod Shaw Jarrod D. Shaw
Partner
Tower Two-Sixty
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222-3142

T: +1 412 667 7907
F: +1 412 402 4193
vCard
Benjamin J. Sitter
Associate
Tower Two-Sixty
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222-3142

T: +1 412 667 7904
F: +1 412 667 7991
vCard
Elizabeth M Z Timmermans Elizabeth M. Z. Timmermans
Associate
434 Fayetteville Street
Suite 2600
Raleigh, NC 27601

T: +1 919 755 6576
F: +1 919 755 6595
vCard
Andrew R Woltman Andrew R. Woltman
Partner
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818

T: +1 312 750 2772
F: +1 312 698 4560
vCard
Sarah A Zielinski Sarah A. Zielinski
Partner
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818

T: +1 312 849 8288
F: +1 312 698 4598
vCard
Results 1-5 of 5
Speaking Engagement

Current Legal Issues and Trends in Mortgage Origination and Servicing

February 4, 2016
Irving, TX
Speaking Engagement

Lawline CLE Presentation

October 8, 2015
Event

TCPA Impacts the Healthcare Industry

July 21, 2015
Complimentary Webinar
Speaking Engagement

Internet of Things World Conference

May 12, 2015
San Francisco, CA
Results 1-5 of 5