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    Telephone Consumer Protection Act Defense & Litigation

    We have the critical combination of class action litigation, Federal Communication Commission (FCC), regulatory and compliance expertise to assist clients with all aspects of mitigating risk under the Telephone Consumer Protection Act (TCPA).

    Counseling

    In order to assess potential TCPA litigation exposure, we work with clients to review:

    • Third-party vendor agreements, including indemnification provisions, and auditing and record-keeping practices to ensure compliance under the TCPA and other applicable laws and regulations
    • Dialing protocol
    • Communication software and technology systems
    • Customer file systems
    • Call center transcripts and website disclosures
    • Insurance coverage for TCPA or customer privacy violations
    • Customer arbitration agreements
    • Customer agreements and best practices regarding revocation of consent
    • Market solutions to mitigate the risks of violating the TCPA, including verifying wireless and reassigned numbers

    Litigation-related Capabilities

    • Class action and multijurisdictional defense
    • Parallel advocacy before the FCC – a strategic consideration that has gained additional importance after the DC Circuit’s ruling and the early indications from the FCC that it will take a fresh look at some of the more salient issues in the TCPA arena
    • Parallel state attorneys general investigations and litigation
    • Third-party actions
    • Crisis management
    • National settlement programs

    We also work with clients to respond to regulatory and government investigations, including investigations by the CFPB and FCC or congressional inquiries. Our US Public Policy, Communications and Government Investigations & White Collar teams include several former government investigators.

    Why Choose Us

    • We have seasoned litigators with experience defending class action, multiparty and single-plaintiff TCPA cases across the US, including in California, Florida, Georgia, Illinois, Arizona and Ohio, where TCPA class actions are frequently filed.
    • We have experienced FCC practitioners involved in TCPA rulemaking and enforcement matters.
    • We regularly conduct compliance audits, review internal policies and practices, and make practical recommendations to assist clients with reducing exposure and potential liability under the TCPA.
    • We have unrivaled legislative insight into the regulatory bodies and agencies that focus on TCPA-related issues, including the FCC, the Consumer Financial Protection Bureau (CFPB), the Federal Trade Commission (FTC) and the Department of Justice (DOJ), among others.

    Our recent experience highlights our TCPA capabilities:

    • Represented one of the petitioners in the DC Circuit’s March 16, 2018, landmark decision in ACA Int’l v. FCC, Case No. 15-1211, vacating two FCC rulings that had significantly broadened TCPA liability and exposure.
    • Insurance company – Currently leading a putative nationwide TCPA class action in the US District Court for the Northern District of Georgia involving Do Not Call allegations, filed by serial plaintiff Kenneth Johansen and represented by Alex Burke, Anthony Paronich and Lieff Cabraser.
    • Automobile company – Currently representing in a putative nationwide TCPA class action in Florida federal court involving text messaging.
    • Telecommunications company – Currently leading a putative nationwide TCPA class action in Arizona federal court involving reassigned numbers.
    • Telecommunications company – Currently defending in an arbitration with its vendor involving contractual indemnity claims arising under the TCPA.
    • National auto finance lender – Successfully opposed class certification in a “wrong number” TCPA class action.
    • Earned a protective order quashing burdensome class data demands pre-certification on the basis of failsafe class definition in the complaint.
    • Helped to shut down two particularly questionable lawsuits – one by a plaintiff who collected 85 cell phones in a bid to collect wrong number calls and another by a lawyer referral service that was deemed illegal and posing as a call block app – resulting in a reduction of nuisance TCPA lawsuits nationwide.
    • National bank – Repeatedly met with staff for all five commissioners of the FCC and the FCC’s general counsel to advocate for common-sense changes to TCPA regulation.
    • Large financial services industry client – Represented in earning the nation’s first post-Spokeo dismissal of a TCPA action for lack of Article III jurisdiction.
    • Earned Ninth Circuit Court of Appeal’s first ruling that providing a number to a caller constitutes consent to receive transactional text messages – even if they may contain some telemarketing materials – and not just calls.
    • Defeated a TCPA certification motion in US District Court, Northern District of Texas.
    • Earned a stay of proceedings in favor of a large international bank in a class action based upon the FCC’s primary jurisdiction to determine the meaning of the phrase “called party” for purposes of the TCPA’s express consent exemption.
    • Clients sued under the TCPA – Earned summary judgment rulings on behalf of clients sued under the TCPA on the grounds that the device they used to place the calls at issue was not an automatic telephone dialing system (ATDS) as defined by the statute.
    • Favorably settled, on an individual basis, a TCPA class action filed against the nation’s largest retail jewelry chain in the US District Court for the Northern District of Georgia based on allegations of “wrong number” calls.
    • Mobile technology company – Represented in a putative TCPA class action in Illinois seeking US$80 million in damages, which we settled for a nominal amount after filing a summary judgment motion.
    • Obtained dismissal of a putative TCPA class action against a prepaid card company pending in Ohio federal court.
    • Secured a voluntary dismissal with prejudice in a putative nationwide TCPA class action brought in Georgia state court for alleged violations of the TCPA against a nonprime credit provider. We removed the action to federal court and negotiated a voluntary dismissal with prejudice based on the inadequacy of the plaintiff under Rule 23.
    • World’s largest airline – Represented against alleged violations of the TCPA through unsolicited text messages in Minnesota federal court.
    • Secured a voluntary dismissal with prejudice in an action under the TCPA and the Electronic Funds Transfer Act against a nonprime credit provider in Missouri state court.
    • National apparel chain – Represented in a putative nationwide TCPA class action for alleged violations of the TCPA for autodialed calls in Indiana federal court.
    • Several financial service providers – Represented in successfully compelling TCPA class actions to individual arbitration.
    • Handled dozens of individual TCPA actions in state and federal courts across the country.
    • Provide ongoing strategic compliance counseling related to TCPA compliance and other consumer privacy laws.

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    We have achieved excellent results in a variety of TCPA lawsuits around the US:

    • Non-US bank – Represented in US District Court, Southern District of California in a nationwide putative TCPA class action, alleging hundreds of millions of dollars in damages. We were retained to replace original counsel after the plaintiff dismissed his individual TCPA claim in state court and re-filed it as a TCPA putative class action in federal court. We determined the best strategy was to settle the state court action and move to compel arbitration of the federal lawsuit. Our motion to compel arbitration was granted, and the claims were settled for nominal amount.
    • US mobile technology company – Represented in US District Court, Northern District of Illinois in a putative class action seeking nearly US$80 million in damages for alleged violations of the TCPA. Plaintiff alleged that our client sent unsolicited text messages to thousands of putative class members using an automatic telephone dialing system, in violation of the TCPA. After securing limited discovery and filing a motion for summary judgment, the class action was dismissed for a nominal settlement.
    • Pizza delivery chain – Represented in US District Court, Northern District of Illinois, Eastern Division in a purported class action relating to defendant’s allegedly sending unsolicited advertisements to telephone facsimile machines, in violation of the TCPA and Illinois Consumer Fraud Act (ICFA). Case was resolved via a settlement of the class representative’s claim for a nominal amount.
    • US prepaid card company – Represented in US District Court, Northern District of Ohio in a putative class action. The lead plaintiff asserted that our client violated the TCPA by using an automatic telephone dialing system to place calls to plaintiffs’ mobile and home telephone numbers using an auto dialer system and recorded message. The case was dismissed in its entirety.
    • US bank and credit card company – Represented in US District Court, Southern District of Ohio, Eastern Division relating to allegedly unlawful telemarketing calls made by the defendant to the plaintiff’s residence, in violation of the TCPA and Ohio Consumer Sales Practices Act (OCSPA). Favorably settled the claims after successfully limiting the plaintiff’s claims and damages in motion practice, and recovered costs associated with defense in indemnity claim against client’s telemarketing vendor.

    Notable successes in parallel FCC defenses include:

    • Health information conveyor – Represented in successfully obtaining carve out from certain Federal Trade Commission (FTC) Telemarketing Sales Rule and FCC TCPA requirements.
    • Major financial institution – Represented in FCC proceedings to successfully support a litigation stay.
    • Platform provider – Represented in successfully obtaining a clarification of the TCPA from the FCC, negating the underlying litigation theory.