Anatomy of a TCPA Class Action: Defense Strategies

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 While originally enacted as a well-meaning statute to protect consumers from random or sequentially-dialed telemarketing calls, enterprising plaintiffs’ attorneys have, at least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