Telephone Consumer Protection Act (TCPA)

Broad, Deep, Nationally-Preeminent TCPA Experience

The Telephone Consumer Protection Act (TCPA), its corresponding Federal Communications Commission (FCC) regulations, its parallel Federal Trade Commission (FTC) regulations and its state-law analogues, constitute a dense, hyper-technical legal regimen with enormous penalties—ranging from $500 to $1,500 per violation, even without an actual injury. The TCPA impacts all industries that engage in any form of communication by telephone, fax, or text message—even with current customers—including healthcare, retail, hospitality, debt-collection and start-up mobile applications. Failure to comply with these ever-growing regulations poses significant risks to companies, exposing them to state and federal investigations and fines, as well as civil lawsuits from private litigants.

Benesch has been counseling clients on TCPA matters and defending TCPA claims since its inception in 1991. Our presence is nationwide and we have successfully defended cases in dozens of state and federal jurisdictions coast-to-coast, at all levels of litigation, including trial courts, appellate courts, state supreme courts and before the FCC. There is a wide range of claims that can be brought under the TCPA and we have counseled clients on, and litigated, all of them.

We have succeeded in advancing truly innovative defenses at all stages of litigation, including forcing individual settlements through Rule 68’s “offer of judgment” mechanism, obtaining outright dismissal of parent corporations and entities with no involvement in the underlying violations, obtaining dismissal pursuant to the healthcare-related message exemption, affirmatively moving to deny class certification at the outset, conducting consumer surveys and absent class member discovery to defeat class certification, and advancing creative legal arguments to end cases at the pleading, class certification, and merits stages.

Benesch provides more than just legal defense. Our TCPA practice is state of the art and we are the only TCPA defense firm nationwide that boasts proprietary data analytics and in-firm developed software that has been specifically designed to analyze and mine call record data. This technological insight guides our legal opinions and defensive strategy, allowing us to translate legal arguments into something that the data actually supports. Our successes in this field occurred because our TCPA Team knows both the law and the technology that is the cornerstone to compliance counseling and a successful defense.

Deep experience with this statute and its commensurate regulations is essential to obtaining favorable results in any TCPA action. Further, we do much more than litigate. A significant part of our practice involves proactive counseling on a host of intricate compliance issues. We work closely with our clients to design and implement marketing campaigns, calling campaigns, growth strategies and calling technologies that comply with the statutory language of the TCPA as well as its innumerable regulations.

We are at the forefront of TCPA defense and our TCPA team has been often recognized as an expert in this field. Our name on the pleadings sends a potent message to plaintiffs’ counsel in these cases, as our defense victories have had a ripple effect on this industry. We have prevailed in all sizes of TCPA cases with acumen and cost effectiveness, from small claims cases up through multi-billion-dollar exposure class actions.

Representative TCPA Cases Handled

  • Successfully defended a nationwide putative class action seeking to hold our client vicariously liable for approximately five million phone calls made by an independent third-party through use of “operator assist” technology, which the plaintiff alleged constituted used of a prerecorded voice in alleged violation of 47 U.S.C. § 227(b)(1). After the denial of class certification, the plaintiff voluntarily dismissed the suit, without payment of a single penny by our client.
  • Defended an international quick service restaurant (QSR) company in a TCPA class action of first impression involving “friend forwarded” text messages. We negotiated the dismissal of all claims prior to responding to the complaint.
  • Successfully defended a nationwide putative class action seeking to hold our client vicariously liable for over one million phone calls by over a dozen third-parties for alleged prerecorded message telemarketing and alleged violations for contacting individuals on the Do-Not-Call registry. After denial of class certification, the plaintiff voluntarily dismissed the suit, without payment of a single penny by our client.
  • Successfully defended one of the country’s largest clothing retailers against a pair of TCPA class actions alleging the receipt of marketing text messages. We defeated one outright and resolved the other for $1,500.
  • A TCPA claim was originally filed against our client in state court in Ohio, alleging that he received dozens of telemarketing calls from third-parties promoting the client’s service. After defeating the plaintiff’s claim, the plaintiff appealed all the way up to the Ohio Supreme Court, later dismissed his suit, and refiled in federal court. The client successfully obtained summary judgment in federal court. On appeal to the Sixth Circuit, the issue of third-party liability under the TCPA was referred to the FCC. It was our client’s win in this case, in part, that helped spur the FCC’s 2013 seminal decision on vicarious liability under the TCPA in In re DISH Network , LLC, 28 FCC Rcd. 6574 (2013). After a protracted referral to the FCC, the plaintiff voluntarily dismissed his claims, with prejudice, and without payment of a single penny by our client.
  • Obtained dismissal for lack of personal jurisdiction over major insurance provider for calls placed by an affiliated entity. The case involved novel issues of corporate liability for affiliated entities and, following jurisdictional discovery, the Court agreed with our arguments in all respects. This left only a thinly capitalized entity in the case, which quickly settled.
  • In a lawsuit filed as a putative TCPA class action in the Northern District of California, our client successfully transferred the lawsuit to the District of Colorado. Having to travel across the country to litigate a case with minimal evidentiary support, the plaintiff ultimately dismissed the lawsuit, with no class ever being certified.
  • Obtained summary judgment on behalf of client in state court suit alleging TCPA violations and Consumer Sales Practices Act violations in connection with telemarketing calls made to an individual. Decision affirmed on appeal.
  • Forced voluntary dismissal of TCPA suit arising from telemarketing calls, which included an award of attorney’s fees to our client.
  • Obtained dismissal or summary judgment on dozens of other TCPA lawsuits and state law claims in both state and federal courts, arising out of alleged telemarketing calls using prerecorded messages, live calls to individuals on the national do-not-call registry, state do-not-call registries, company specific do-not-call lists, and other TCPA provisions.
  • Represented a client in a case in which plaintiff brought a class action against the client in the U.S. District Court for the Eastern District of New York, alleging that our client transmitted unsolicited fax advertisements to plaintiff and tens of thousands of others. We successfully moved to dismiss on the grounds that a New York law prohibiting class actions in cases seeking recovery of statutory penalties divested the court of jurisdiction over plaintiff’s claims. Plaintiff appealed, and the U.S. Court of Appeals for the Second Circuit affirmed.

Representative TCPA Healthcare Cases Handled

  • Defended Zimmer in two 10-figure exposure TCPA fax action. Developed a strategy to completely resolve both cases for pennies on the dollar and eliminate exposure globally.
  • Defended CVS in three putative class actions and two individual actions across the country, obtaining precedent-setting and successful resolutions. In one putative class action in Florida, we obtained a voluntary dismissal in exchange for nothing after marshalling evidence that the plaintiff had no credible claim.
  • Defended Stryker Corporation in a TCPA class action stemming from alleging unsolicited announcing “recent advancements in orthopedics” seminars. Obtained a successful global resolution despite enormous exposure.
  • Defended start-up healthcare provider in Florida and obtained a complete dismissal with prejudice after establishing that the plaintiff had attempted to bring the same action twice previously.
  • Defended one of the country’s largest health insurance providers against TCPA fax class action and obtained a nuisance value settlement after establishing that the plaintiff had no viable class-wide claim.
  • Defended national pharmaceutical company against TCPA fax class action. Successfully transferred case to advantageous jurisdiction to avoid enormous exposure

Representative TCPA Debt Collection Cases Handled

  • Defend creditors against TCPA, FDCPA, and various state law claims arising from debt collection calls.
  • Defended creditor against TCPA and Florida Consumer Collection Practices Act claims arising from debt collection calls to a customer who allegedly did not provide consent for debt collection calls.
  • Defended dozens of “errant debtor” suits where individuals filed TCPA claims against creditors alleging they are not the debtor, including suits where telephone numbers were reassigned from debtor to the plaintiff, debtors who have fraudulently provided false contact information to avoid contact, and misdialed telephone numbers due to dialer error.
  • Defended creditor against TCPA claims arising from errant debt collection calls. After defeating the plaintiff’s attempt at class certification, the case was tried before a jury in the United States District Court, Southern District of Ohio. A highly favorable verdict was obtained (verdict did not exceed creditor’s pre-trial settlement offer).
  • Defended creditor against TCPA claims arising from debt collection calls to a customer. Obtained dismissal of debtor’s claims and prevailed on summary judgment for breach of contract and account claims against debtor.
  • Defended creditor against TCPA and state law claims (debt collection act and deceptive trade practices consumer protection act) arising from debt collection calls to a customer.
  • Defended creditor against TCPA, FDCPA, and state law claims (invasion of privacy and consumer protection act) arising from errant debt collection calls.
  • Defended creditors against TCPA claims for debt collection calls as to whether dialing equipment used qualifies as an Automatic Telephone Dialing System under TCPA.
  • Represented a global power management company and its disability claims administrator in a lawsuit in the U.S. Bankruptcy Court for the Eastern District of Arkansas (Little Rock Division) asserting, among other things, a violation of the FDCPA for garnishing an overpayment of disability benefits post-bankruptcy. Treble damages were sought against our clients, as is permitted under the FDCPA. We moved to dismiss, briefed and argued the issue, and won full dismissal of the FDCPA claims.

Representative TCPA Compliance Matters Handled

  • Serve as national counsel for two Fortune 500 companies for TCPA litigation and risk analysis matters nationwide.
  • Serve as national compliance counsel for the country’s largest pharmacy.
  • Advised the country’s largest QSR with regard to customer outreach.
  • Advised numerous startups with regard to TCPA and TSR compliance.
  • Advised nationwide industrial machinery seller on TCPA compliance with respect to business-to-business telemarketing.
  • Represented seller in FCC proceedings regarding scope of telemarketer/seller liability under TCPA.
  • Advised gym franchisor regarding TCPA requirements and compliance for text message marketing to potential customers and informational messages to existing customers.
  • Advised nationwide call center on Federal Communication Commission’s June 2015 Declaratory Ruling regarding scope of “automatic telephone dialing systems” and other issues raised in the Declaratory Ruling.
  • Routinely provide TCPA compliance opinions and recommendations to businesses engaged in telemarketing and debt collection activities at all levels of the industry, including sellers, creditors, telemarketers, collection agencies, call centers, telecommunications platform providers, and compliance entities.