TCPA & Consumer Privacy

Our approach

With today’s mobile and cloud-based technologies, companies can access and interact with consumers more conveniently and efficiently than ever. But businesses must understand the legal risks before leveraging these technologies. The Telephone Consumer Protection Act (TCPA)—an antiquated consumer protection statute, enacted in the infancy of the digital and wireless age—governs today’s communications technologies, along with a patchwork of related federal and state privacy rules.

Congress enacted the TCPA to protect consumer privacy from businesses using mass telemarketing methods of the late twentieth century, including “autodialers.” The statute forbids the intrusive use of indiscriminate automated technologies without an applicable exception or the express consent of the receiving party. Under the TCPA, plaintiffs can sue for statutory damages of up to $1,500 per violation. These generous remedial provisions have attracted the attention of class action lawyers seeking to aggregate claims and threaten potential liability measured in tens or even hundreds of millions of dollars. State and federal agencies also enforce the law by assessing fines and penalties.

The FCC has expanded the law’s reach to cover new communication channels, such as text and instant messaging, and new methods to contact consumers, such as software that dials from targeted lists. Any business that plans to communicate with consumers using automated technology, even when the intended communication is not telemarketing, must be careful to avoid the compliance pitfalls. Our team helps businesses understand and comply with the TCPA, the FCC’s implementing rules, and the various state laws. 

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, among others:

• 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

Litigation

• Represented a leading medical device manufacturer in an action in U.S. District Court for the District of Massachusetts, which alleged violations of the TCPA involving prerecorded calls regarding educational seminars; succeeded in defeating the plaintiff’s motion for class certification; then succeeded in getting the individual claims disposed of on summary judgment.
• Defended real estate digital marketing specialist in U.S. District Court for the District of Massachusetts involving allegations that the defendant called plaintiff’s cell phone using an autodialer and delivered a prerecorded message without the plaintiff’s consent, and succeeded in achieving favorable non-class settlement following summary judgment briefing
• Achieved successful early settlement on behalf of a digital performance marketing company in a putative class action in U.S. District Court for the District of Massachusetts alleging violations of the TCPA for autodialed and pre-recorded telemarketing calls
• Defended a leading clinical laboratory network in a putative class action in U.S. District Court for the Middle District of North Carolina brought by one of the most notorious TCPA plaintiffs and alleged violations of TCPA involving automated phone calls to mobile phones; following aggressive litigation strategy, the case settled, pre-certification, on favorable terms to our client
• Through persuasive early case arguments and settlement negotiations, achieved the early, pre-class certification settlements of two separate TCPA class actions in federal court in Florida against the corporate parent of a fitness club franchise
• Successfully defended a regional banking corporation in a putative class action in U.S. District Court for the Western District of New York alleging violations of the TCPA with respect to alleged auto dialer communications and negotiated a favorable settlement before class certification
• Successfully defended residential solar installer in a putative TCPA class action in U.S. District Court for the District of Massachusetts alleging violations of the TCPA and related Massachusetts laws with respect to alleged autodialer communications and calls in violation of the Do-Not-Call provisions of the TCPA
• Defended national CRM and marketing provider in a putative class action in U.S. District Court for the Southern District of New York against allegations of autodialed and pre-recorded telemarketing calls and achieved a favorable settlement pre-class certification
• Defended national CRM and marketing provider in related putative class actions in U.S. District Court for the Southern District of California: (1) alleged violations of the TCPA for autodialed and pre-recorded telemarketing calls; and (2) alleged violations of California state law for recording phone calls without consent; 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 to a variety of clients, including advising:

• Marketing provider on compliance with the TCPA and recent FCC decisions, including drafting and negotiating contracts with clients and vendors to ensure compliance
• Rapidly-growing franchisor on TCPA compliance, including compliance by franchisees with regards to text messaging
• Professional sports organization and arena owner on TCPA and CAN-SPAM compliance regarding its phone calls, text messages, and e-mails 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