TCPA & Consumer Privacy



Laws such as the Telephone Consumer Protection Act have changed the way businesses connect with consumers. We’ll help you move your business forward while complying with complex rules and regulations.

Our approach

With today’s mobile- and cloud-based technologies, companies can interact with consumers more conveniently and efficiently than ever. But businesses have been constrained in their use of such technologies due to the FCC’s expansive interpretation of the Telephone Consumer Protection Act of 1991 (TCPA)—an antiquated consumer protection statute from the age of non-targeted mass telemarketing with autodialers.

The statute and the FCC’s implementing regulations are complex and ever evolving, creating substantial compliance challenges for well-meaning businesses. Our team helps you understand and follow the TCPA, the FCC’s rules, and the patchwork of related federal and state privacy rules.

Any business that plans to communicate with consumers using automated technology must be careful to avoid the pitfalls of noncompliance. Failure to do so can be costly. Plaintiffs can sue under TCPA for statutory damages of up to $1,500 per violation—a generous remedial provision that can attract the attention of class-action lawyers.

Who we work with

Businesses operating in regulated industries that deliver products or services, including:

  • Communication services
  • Customer relationship management (CRM) and marketing
  • Financial services
  • Franchisors and retail companies
  • Health care
  • Insurance
  • Professional sports organizations and other entertainment

Additional consumer privacy law experience

We have experience with complex consumer privacy, data protection, and security laws impacting businesses nationwide, including:

  • Illinois Biometric Privacy Act (BIPA)
  • California Consumer Privacy Act (CCPA)
  • EU General Data Protection Regulation (GDPR)
  • Computer Fraud and Abuse Act (CFAA)
  • Federal Trade Commission Act (FTC Act)
  • Fair Credit Reporting Act (FCRA)
  • Fair and Accurate Credit Transactions Act (FACTA)
  • Fair Debt Collection Practices Act (FDCPA)
  • Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)
  • Children’s Online Privacy Protection Rule (COPPA)
  • Video Privacy Protection Act (VPPA)
  • Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act)
  • Driver’s Privacy Protection Act (DPPA)
  • Freedom of Information Act (FOIA)
  • Federal Trade Commission (FTC) and Federal Communications Commission (FCC) regulations
  • State consumer protection laws in all 50 states, the District of Columbia, and Puerto Rico

Recent Experience

Our recent work includes these clients and representations:

Litigation

  • A leading medical device manufacturer, real estate digital marketing specialist, and digital performance marketing company in US District Court for the District of Massachusetts involving allegations that the defendant called plaintiff’s cell phone using an auto dialer and delivered a prerecorded message without the plaintiff’s consent. Succeeded in achieving favorable non-class settlement following summary judgment briefing
  • Defended a leading clinical laboratory network in a putative class action in US District Court for the Middle District of North Carolina brought by a notorious TCPA plaintiff, alleging violations involving automated phone calls to mobile phones. We developed an aggressive litigation strategy and settled the case, pre-certification, on terms favorable to our client
  • Through persuasive early case arguments and settlement negotiations, achieved the early, pre-certification settlements of two separate TCPA class actions in federal court in Florida against the corporate parent of a fitness club franchise
  • A regional banking corporation in a putative class action in US District Court for the Western District of New York alleging violations of the TCPA with respect to alleged auto dialer communications. Negotiated a favorable settlement before class certification
  • Successfully defended a residential solar installer in a putative TCPA class action in US District Court for the District of Massachusetts alleging violations of the TCPA and related Massachusetts laws with respect to alleged auto dialer communications and calls in violation of the law’s do-not-call provisions
  • National CRM and marketing provider in a putative class action in US District Court for the Southern District of New York against allegations of auto dialed and pre-recorded telemarketing calls. Achieved a favorable settlement pre-certification
  • Defended a national CRM and marketing provider in related putative class actions in US District Court for the Southern District of California: one for alleged violations of the TCPA for autodialed and pre-recorded telemarketing calls, and the second for alleged violations of California state law for recording phone calls without consent. We successfully briefed and argued bifurcation of the individual merits from class discovery and the cases settled favorably for our client on individual bases prior to class certification

Compliance counseling

We’ve also provided compliance counseling clients in a variety of industries, including advising:

  • Marketing providers on TCPA compliance, including drafting and negotiating contracts with clients and vendors to ensure compliance
  • Rapidly growing franchisor on TCPA compliance, including advising on franchisees’ compliance with text-messaging rules
  • Businesses providing TCPA-compliant communications services for health care providers
  • Professional sports organization and arena owner on TCPA and CAN-SPAM compliance regarding its phone calls, text messages, and emails to ticket holders
  • Legal services provider on TCPA compliance for mass-texting campaigns
  • Software company on TCPA compliance, including drafting contractual language to ensure compliance
  • Professional sports organization’s e-commerce store on online privacy, including drafting privacy policies
  • Financial institution on compliance with the TCPA, CAN-SPAM, and online privacy requirements

Unwanted pre-recorded calls don’t violate TCPA

Massachusetts Lawyers Weekly | January 23, 2020

This article mentions Manchester Complex Commercial Disputes partner Dan Deane and Boston Complex Commercial Disputes associate Troy Lieberman, who earned a favorable ruling on behalf of defendant Boston Scientific in a class action suit alleging violations of the Telephone Consumer Protection Act.

FTC steps up actions against VoIP providers to abet scammers

Rochester Business Journal | January 17, 2020

In his latest monthly column, Rochester Corporate partner Jeremy Wolk analyzes a recent action by the Federal Trade Commission to crack down on VoIP providers who turn a blind eye to their clients’ unlawful telemarketing practices. Washington, DC, Complex Commercial Disputes associate Brian Donnelly and Rochester Complex Commercial Disputes associate Zach Osinski contributed to the article.

Keep up with laws developing to protect our consumer data

Rochester Business Journal | November 15, 2019

In the latest installment of his monthly column, Rochester Corporate partner Jeremy Wolk analyzes state-level legislation aimed at enhancing consumer privacy rights and protections, similar to the European Union’s General Data Protection Regulation. Rochester Corporate associate Jenny Holmes contributed to the column.

Boston Scientific asks judge to toss robocall suit

Law360 | July 12, 2019

This article highlights Boston Intellectual Property associate Troy Lieberman, who is representing Boston Scientific in a proposed class action suit alleging violations of the Telephone Consumer Protection Act.

How to contact your customers without getting sued

Bloomberg Law | June 11, 2019

San Francisco Complex Commercial Disputes partner Karl Belgum wrote this contributed article explaining that businesses need to perform a self-assessment of the risks of automated customer contact, given the FCC’s failure to clarify the scope of the Telephone Consumer Protection Act.

Facebook lawsuit underscores importance of transparent collection and use of data

Rochester Business Journal | January 25, 2019

Rochester Corporate partner Jeremy Wolk wrote this contributed column analyzing a lawsuit filed against Facebook in Washington, DC, alleging violations of state-level consumer protection laws by the social media company. This article incorporates perspective from an alert written by Washington Complex Commercial Disputes associate Brian Donnelly, Rochester Corporate associate Jenny Holmes, and Los Angeles Government Investigations & White Collar Defense associate Karina Puttieva.

High court may upend TCPA litigation landscape

Law360 | November 13, 2018

Boston Intellectual Property associate Troy Lieberman is quoted in this article looking at possible FCC changes to the definition of “autodialer” in regard to the Telephone Consumer Protection Act.

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