Anatomy of a TCPA Class Action: Defense Strategies

(256 Ratings)

Produced on: October 08, 2015

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 60 minutes
Difficulty Beginner

This seminar provides an overview of the latest developments in the exploding area of Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., class action litigation.  

 

The TCPA regulates, among other things, businesses calling consumers on their wireless or cellular telephones using an “automatic dialing system” or “ATDS.” While originally enacted as a well-meaning statute to protect consumers from random or sequentially-dialed telemarketing calls, enterprising plaintiffs’ attorneys have, at least according to some business groups, abused the law to rake in attorney’s fees as TCPA cases are typically filed as class actions seeking a minimum of $500 in statutory damages per violation. The rapid advent in technology, as well as unclear and often contradictory case law and regulations, has caused much confusion for defendants as to what specific conduct is covered by the TCPA and, in recent years, caused a prolific rise in TCPA lawsuits, which are up 560 percent between 2010 and 2014.

 

While many companies hoped the Federal Communications Commission (“FCC”) would provide some relief to businesses facing these types of lawsuits, its recent June 2015 declaratory ruling “strengthened consumer protections,” rather than provided common sense limitations on the conduct and technology subject to the TCPA. As a result, the recent groundswell of consumer class actions under the TCPA is unlikely to die down anytime soon as the plaintiffs’ bar continues to be enticed by uncapped statutory damages and uncertain law.

 

Attorneys from DLA Piper LLP (US), Edward D. Totino, Elliot Katz, and Monica D. Scott, explain the current contours of the TCPA, as well as the FCC’s 2012 and 2015 declaratory rulings interpreting important provisions of the statute. Additionally, Mr. Totino, Mr. Katz, and Ms. Scott discuss recent developments in case law as well as defense tips, including strategies for defeating class certification.  

 

Learning Objectives:

I.     Understand what conduct is covered by the TCPA

II.    Understand the significance of the FCC’s 2012 and 2015 declaratory rulings on the TCPA

III.   Understand what defenses are available to companies sued in TCPA actions

IV.   Identify the hurdles plaintiffs face when certifying TCPA actions

Faculty

Monica D. Scott

DLA Piper

Monica Scott is a Certified Information Privacy Professional (CIPP/US) and is a member of the Firm's Class Action Litigation Group. Monica focuses her practice on complex commercial litigation with an emphasis on privacy issues.

 

Monica has successfully represented clients in many types of areas, including consumer class actions, privacy rights and call recording class actions, labor and employment class actions, franchise, products liability, securities, as well as unfair competition and related business torts.

 

Related Services

  • Litigation, Arbitration and Investigations

 

Language Spoken

  • German

 

Experience

 

Representative Matters

  • Multiple national companies in class actions alleging violations of the Telephone Consumer Protection Act
  • Several international banks and credit card companies in California call-recording class actions
  • Second-chaired a four-day jury trial on behalf of a corporate plaintiff on claims for conversion and breach of contract, and thereafter obtained a finding of fraud and punitive damages against the defendant
  • The former CFO of a multibillion-dollar public company, as part of the DLA Piper litigation and trial team, in SEC civil litigation
  • A national electronics provider in a California consumer class action lawsuit
  • A national janitorial franchise company in a wage and hour class action suit
  • A national terminal operator and stevedore in a wage and hour class action lawsuit
  • A national motorcycle manufacturer in a consumer class action lawsuit

 

Credentials

 

Admissions

  • California

Prior Experience

During law school, Monica served as a judicial extern to the Honorable A. Wallace Tashima of the US Court of Appeals for the Ninth Circuit as well as a Managing Editor of the UCLA Law Review.

 

Education

  • J.D., University of California at Los Angeles School of Law 2009

    • Managing Editor, UCLA Law Review
  • B.A., Philosophy/German, University of California, Los Angeles 2004

 

Memberships

  • International Association of Privacy Professionals (IAPP) 
  • Los Angeles County Bar Association 
  • Women Lawyers Association of Los Angeles

 

Elliot Katz

McGuire Woods LLP

Elliot Katz has a multi-faceted practice, handling litigation (complex business, privacy, and intellectual property matters) privacy counseling, and investigations for Fortune 500 companies, individual C-level executives and startups in various sectors such as technology, finance, media and automotive.

 

Recently, Elliot was part of a trial team that achieved a complete victory for a tech company in a three-week trial of a shareholder dissenters rights matter. The dissenting shareholders sought US$10 million more than the amount the tech company had determined to be the fair value of their shares immediately prior to the at-issue merger. The trial court wholly adopted the tech company's analysis of the fair value of its shares and rejected the dissenting shareholders position, resulting in a US$0 award for the dissenting shareholders. The dissenting shareholders have since appealed – hiring a former Washington state Senator and Supreme Court Justice as their appellate counsel – and Elliot is now a key member of the tech company's appellate team.

 

Elliot has significant experience with spam lawsuits, currently handling two such litigations: one for one of the world's largest online dating websites and another for one of the world's largest media and internet companies.

 

In his counseling practice, Elliot advises clients on state, federal, and international privacy and consumer protection laws including the TCPA and the CAN-SPAM Act, data collection, cross-border data transfer, privacy strategy and privacy by design. Elliot is part of the firm's Internet of Things Group and frequently works on privacy issues related to connected devices such as connected cars and issues surrounding the use of mobile location analytics. In 2014, Elliot worked as a secondee on the global privacy team of the Office of the General Counsel of a Fortune 10 company on connected car legal issues and continues to work with them as outside counsel.

Edward D. Totino

DLA Piper

Edward Totino focuses his practice on class actions, complex commercial litigation and securities litigation.

He represents a broad spectrum of clients including banks and other financial institutions, customer management companies, and hotels. Edward was named a Southern California Super Lawyer for multiple years. He has been rated AV by Martindale-Hubbell.

 

In 2006, Edward received the prestigious Burton Award for Legal Achievement for the article "Litigation Strategies: Managing Litigation Risk and Addressing Investor Concerns." The Burton Award is dedicated to the enrichment and refinement of writing in the legal profession. Every year these awards honor lawyers who use clear, concise language to comment on important legal issues. The awards are presented by the Burton Foundation, a nonprofit cultural and academic organization devoted to promoting the legal profession. "Litigation Strategies" originally appeared in PIPES: A Guide to Private Investments in Public Equity, published in December 2005. In 2007, Edward received a Highly Commended Award from the Emerald Literati Network for the article "Recent Developments in Hedge Fund Enforcement and Regulation by the SEC under the Leadership of Chairman Cox Suggest that He May Not Be the Free Market Advocate Everyone Once Thought He Was." The article originally appeared in the Journal of Investment Compliance in 2006.

 

Mr. Totino regularly presents on a panel on Class Actions as part of a Los Angeles County Bar Association program for new attorneys. The other members of the panel typically are a plaintiff's class action lawyer and either a state or federal judge.

 

Reviews

AF
arthur f.

very interesting--about telephone marketing call business class action cases. I took lots of notes. robo calls

TR
tim r.

Pretty well coordinated trio.

CD
Craig D.

Good program. Would have liked a longer program. Cutting edge topic. Please do a follow up.

LC
Lauren C.

very helpful. Substantive advice on how to protect your client.

TM
Thomas M.

Surprisingly good. Was not aware of quality of discussion on class actions before I enrolled. Thank you

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