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Telephone Consumer Protection Act Lawsuit Defense

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Effective Defense of TCPA Claims

Olshan’s Advertising, Marketing & Promotions practice group has substantial experience advising and defending clients from claims made under the Telephone Consumer Protection Act (TCPA).  Enacted in 1991, the TCPA requires the prior express consent of the recipient before sending the types of communications listed above.  However, the law has been revised and reinterpreted on several occasions in a manner that has caused considerable confusion among courts around the nation.  In recent years, the amount of TCPA litigation, and exposure to reputable businesses, has exploded through the filing of class actions seeking $1500 per call related to the use  on the use of autodialed calls (also known as "robocalls"), pre-recorded voice calls or mass text messaging.  TCPA lawsuits have expanded beyond simple advertising attempts and now attack businesses’ attempts to collect debts or even just to confirm receipt of consumer inquiries.

There are many exceptions and wrinkles unique to the TCPA, so experienced counsel is essential when dealing with TCPA claims.  At Olshan, our Advertising, Marketing & Promotions attorneys not only make great efforts to stay up to date with cutting-edge legal trends, we also maintain a blog that discusses the latest developments.

As agencies, including the Federal Trade Commission, as well as consumers, become increasingly aggressive in enforcing the TCPA, they have become more stringent in pursuing action against any perceived violation of advertising and debt collection laws.  In addition to class action lawsuits, being accused of violating TCPA laws means that your organization is exposed to the following risks:

  • Investigations
  • Regulatory and administrative complaints
  • Fines
  • Individual lawsuits, which can seek anywhere from $1500 to six figures in damages
  • Negative publicity
Advertising and TCPA Law

There are now more mobile devices in the world than there are people.  As consumers have migrated to mobile, reaching them remains of critical importance.  This extends beyond traditional marketing concepts and into seemingly risk-free areas such as sending non-marketing communications and news items to customer bases.  Unfortunately, these very understandable goals mean that companies unwittingly run afoul of TCPA laws, which are based on antiquated ideas of mobile marketing.

Another common issue occurs when marketing companies violate advertising rules on campaigns that bear the name not of the marketer agent, but of the seller of the product or service.  Many companies outsource their advertising and marketing campaigns, in some cases choosing overseas companies to reduce advertising expenses.  We have successfully defended our clients in lawsuits that resulted from the actions of marketing firms, affiliates, lead generators and other third parties.  We also have experience in dealing with the delicate situation of the “rogue” marketer who exceeds his or her authority to advertise our client’s product or service.  Such scenarios often require a business to seek indemnification or assert claims against the marketer.  Olshan is very familiar with such situations, having represented affected clients on many occasions.

Proactive Action

Violating TCPA laws can result in significant penalties, damage to a company’s brand, and a lengthy and expensive legal case.  Recovering from the issue as a business can be challenging, which is why Olshan believes preventing lawsuits is the ideal situation.

Some customers, frustrated by spam and unsolicited text messages and calls, will launch legal claims or complaints against companies they can identify, whether or not the company actually violated the law.  Staying compliant with all relevant laws reduces the risk such claims will gain any traction.  Taking proactive steps to ensure compliance protects your company from accusations and even frivolous lawsuits.  

Olshan advises clients with respect to proactive measures a marketer can take to comply with the TCPA.  While the law surrounding the TCPA is in a state of flux, we help guide clients on the appropriate steps to consider implementing while engaging in lead generation and calling/texting campaigns.  In addition, Olshan has successfully defended TCPA lawsuits in several jurisdictions utilizing a number of legal strategies.  We strive to stay on top of TCPA law with cutting-edge legal defense theories to resolve TCPA cases as early in the litigation as possible.  We also defend FTC and FCC investigations relating to potential TCPA violations.

We frequently speak and write on TCPA issues on our advertising law blog, and have available a webinar “Important Changes To The TCPA: What You And Your Client Need To Know” and have continued to speak regularly about current events and legal developments in this area of the law.

For assistance with the prevention or defense of litigation or investigation of an alleged TCPA violation, contact us:

Andrew Lustigman Email
Scott Shaffer Email