TCPA & Consumer Privacy

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