TCPA & Teleservices
With a myriad of federal and state laws to follow, legally communicating with customers or prospects via phone, text, or fax has never been more difficult. Failure to comply with these laws – several of which are broad enough to cover non-marketing and general B2B communications – can have significant consequences, including “bet the company” class actions and regulatory enforcement actions. To combat this threat, you need to know how to proactively mitigate risk and effectively defend against lawsuits or investigations when they arise.
With a team that includes former regulators once charged with creating and enforcing these laws, we help businesses successfully navigate this rapidly evolving and high-stakes regulatory environment. Our diverse client base includes sellers, manufacturers, contact centers, and vendors in all industry verticals and ranges from small businesses to Fortune 50 companies.
We routinely advise on matters involving the Telephone Consumer Protection Act (TCPA), Telemarketing Sales Rule (TSR), and state laws governing privacy and everything from telemarketer registrations and Do Not Call lists to scripting and call recording practices. We provide practical, actionable advice that keeps businesses in compliance with existing laws and prepared for emerging ones. Although there is no such thing as zero risk, we know that our telemarketing compliance clients are unlikely to need our litigation services. For those that come to us facing litigation or enforcement action, we have an outstanding track record in defending these cases, frequently achieving favorable resolution at the pre-litigation stage.
We also serve as General Counsel to the Professional Association for Customer Engagement (PACE), the industry association dedicated to the advancement of companies that use a multi-channel approach—including outbound calls and texts—to engage their customers. In this role, we are at the forefront of evolving policy matters with an ear-to-the-ground intelligence on legislative and regulatory activity. We monitor all legal developments and court opinions on a daily basis. This helps us work proactively to keep our clients informed and out of trouble and, in the event of a lawsuit, to quickly evaluate the claims and formulate an effective defense strategy.
No other telemarketing regulation has garnered as much confusion, debate, and arguably, legal risk as the TCPA.
As a strict liability statute with uncapped statutory damages and no requirement to prove economic damages, the TCPA has proven to be very attractive to professional litigants and opportunistic class action plaintiffs’ counsel. Inconsistent and overly broad interpretations adopted by the Federal Communications Commission (FCC), and correspondingly by courts, have made it even more difficult to conduct telephone, text, fax, or prerecorded message campaigns without facing significant risks. Numerous states are stepping up with their own new or updated “mini-TCPA” laws, introducing yet another source of class action claims and government enforcement actions.
Many businesses assume – often incorrectly – that they, as well as their vendors, operate in compliance with TCPA requirements. Failure to do so, however, exposes them to a significant financial threat that can cripple operations or bankrupt them completely. That’s why our TCPA practice focuses as much on helping integrate compliance protocols with day-to-day operations as it does on providing aggressive defense in the event of litigation or a regulatory investigation.
We are a national voice on the TCPA and our role with PACE places us squarely on the front line in handling TCPA litigation and policy matters with regulators. We were integrally involved with the successful challenge to the FCC’s 2015 Declaratory Ruling brought by PACE and several other organizations, in which the D.C. Circuit Court of Appeals set aside the FCC’s broad interpretation of an automatic telephone dialing system (ATDS) and treatment of calls made to reassigned numbers. We also co-authored an amicus brief in the case Facebook v. Duguid, which was cited multiple times in the U.S. Supreme Court’s decision agreeing with Facebook in applying a narrower definition of an ATDS under the TCPA.
We offer a full range of legal services that cover all facets of teleservices compliance and defense, including the following:
Defense of Class Action & Individual Lawsuits
We have defended many clients against class action and individual lawsuits involving the TCPA and other telemarketing laws, achieving optimal outcomes that include defeating class certification, securing case dismissals, and negotiating favorable settlements.
We have conducted hundreds of compliance audits across the nation and abroad, covering a broad range of telemarketing, privacy, and other consumer protections laws and regulations. We provide internal audits of our clients’ operations as well as audits of the call centers, dealers, and vendors with which our clients partner.
We regularly help clients identify and mitigate internal and external sources of risk through the implementation of practical, cost-effective, compliance programs. These programs include, among other things, drafting policies and procedures, providing employee training, and establishing robust quality assurance protocols.
Third-Party Due Diligence & Contract Review
In addition to auditing our clients’ internal compliance programs, we also help them mitigate external risks by establishing robust due diligence programs for their vendors, dealers, marketing partners and/or merger and acquisition targets. Such programs might include pre-contract due diligence measures, contractual requirements/prohibitions, marketing guidelines, ongoing due diligence protocols, and remediation measures.
State & Federal Investigations and Enforcement
We have successfully defended clients in Do Not Call and other state and federal enforcement activity brought by the FCC, Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), and state attorneys general, including multistate actions brought by all 50 state attorneys general.
We frequently advocate for our telemarketing clients’ interests in matters involving the Federal Trade Commission (FTC), Federal Communications Commission (FCC), Consumer Financial Protection Bureau (CFPB) and other federal and state regulators. This includes filing petitions or comments on behalf of our clients and meeting with regulatory agencies.
State Registrations & Do Not Call List Subscription
We help clients analyze their telemarketing campaigns to determine state telemarketer registration and Do Not Call list subscription requirements. We also help clients obtain and manage all required registrations and subscriptions.
Given the prevalence of TCPA litigation, it is common for a company’s prospective clients or business partners to request legal opinions related to a specific product, communications platform, campaign or other TCPA-related issues. We are often called upon to provide such opinions so our clients can document compliance with the TCPA and grow their businesses.