November 29, 2021

Volume XI, Number 333

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TCPA.WORLD HALLOWEEN HAUNT: The Top 5 Scariest TCPA Stories to Freak You Out this Halloween

Nothing is scarier than the TCPA.

Vampires? Werewolves? Mummies? Frankensteins? Nope. Not even close. (Can you tell I watched Monster Squad recently, btw?)

The TCPA is the biggest single compliance/legal risk facing many businesses and an ever-present threat to cripple–or end–businesses that make large volumes of phone calls.

The statute remains the biggest cash cow in history for the Plaintiff’s bar–minting a new millionaire Plaintiff’s lawyer every 8 minutes on average (or so it seems) – and is simultaneously the single-broadest restriction on constitutionally-protected speech in our nation’s history.

Yep. Nothing scarier than the TCPA.

But billion-dollar judgments, vast and shapeless restrictions on free speech, and a filthy rich plaintiff’s bar are only part of the story. Here are the top 5 stories that will REALLY freak you out this Halloween season:

5. The Plaintiff’s Bar is Coming for Your Dialer’s Source Code

Like the relentless death-proof maniacs in your favorite slasher flics, the Plaintiff’s bar simply will not go away on ATDS issues, even after Facebook. 

Sure Facebook was supposed to do away with the onslaught of TCPA ATDS cases out there, but it has done anything but. Footnote 7 arguments are reanimating ATDS cases like an army of undead zombies, allowing the Plaintiff’s bar to peek under the hood of your dialer like never before. Indeed, a series of cases have now awarded Plaintiffs source code for popular dialer platforms.

This will not go well.

Making matters worse, I’ve already noted the arguments from the dark side that seemingly innocuous-looking code is actually a number generator in disguise. And when you factor in that the MAJORITY RULE right now is to allow ATDS cases to survive the pleadings stage, the TCPA.World is a dark, dark place indeed.

4. Click to Dial Systems Are Suddenly Potentially Subject to the TCPA

You know those horror movie scenes where the characters all take refuge in some dark, moist cave, only to discover they’ve actually run headlong into the mouth of some great beast set to devour them?

Yeah, the whole click-to-dial disaster is pretty much just like that.

Prior to Facebook click-to-dial systems like HCI and others seemed to be the GOLD STANDARD of safety. Tons of businesses flocked to use click-to-dial systems to call on non-consented numbers believing– for good reason–that the systems did not trip the TCPA. After all, well over a dozen district court opinions held that if a human being click a button to launch a call then an ATDS was not used.

Oops.

Turns out that the entire body of law was tossed out with the bathwater by the Supreme Court. When the Facebook ruling determined that only the use of RoSNG mattered it meant that click-to-dial systems were on equal footing with predictive dialers. Either they use an RoSNG, or they don’t. And the fact that “human intervention” might be involved to launch a call didn’t matter a whit.

So now all those folks that used click-to-dial systems to call cell phones without consent are facing a new paradigm where their refuge technology may end up being less safe than the predictive dialers they were using to call consented phone numbers. Even HCI might be an ATDS now. 

What a disaster.

3. Florida Ruined Everything for Callers

It's simple. Just don’t step foot in the haunted house.

You don’t know what lurks inside, and it's all bad. Maybe ghosts, goblins, bleeding walls, disembodied voices speaking tales of woe or hurt.

That’s pretty much the Florida Telephone Solicitation Act (Mini-TCPA) right now. An incredibly vague statute that is full of bone-chilling (yet indecipherable) horrors, we’ll need to wait for case law to develop before we really know just how spooky the amended enactment really is.

What we do know is that there’s a mummy’s curse-sized heap of trouble waiting for anyone who dares disturb the cell phones of Florida residents without express written consent. The hungry, hungry Plaintiff’s bar down in Florida is simply feasting on these suits right now.    

2. The Rule on DNC Disclosures Has Changed in the Worst Possible Way

That shadow lurking in the corner isn’t just the window shade. It's probably a legacy DNC disclosure coming back to haunt you.

Just a few months ago a disclosure that listed the category of sellers that might offer a consumer a product they were interested in would have been just fine in terms of beating a DNC claim on express written consent grounds.

But following PillPack sellers need to make sure they are actually specifically named in a disclosure–even if oral consent is being subsequently obtained. Its one of the scariest shifts in the law you can imagine–and I’m still pretty much the only one talking about it.

1. Speaking of DNC Cases– I Hope You Have Your Internal DNC List Handy In Case You’re Ordered to Hand it Over to the Plaintiff’s Bar

*Insert blood-curdling scream here*

As scary as those stories are, nothing beats the recent bludgeoning Allstate has endured.

The company–facing litigation over calls made by third parties acting on behalf of its agents–has been ordered to produce its entire Internal DNC list to a Plaintiff’s lawyer that specializes in consumer class litigation.

Why?

So that the lawyer’s expert can compare it to the DNC list of the vendors retained by Allstate’s agents to call consumers. And if the two don’t match? Curtains.

It's easily the scariest story in TCPA.World right now, and something you have to be absolutely aware of if you are using third parties to call consumers to sell your products. All such vendors need to have up-to-date internal DNC lists that align– or else you may end up facing a nightmarish DNC class action of your own.

Bonus HORROR: Personal Liability

To me, nothing is scarier than the idea that my gentle readers might be held PERSONALLY liable for a TCPA violation undertaken by their employer. Yet that remains the fearsome reality in a TCPA.World that cares not for corporate formalities.

Just remember–if you are in any way responsible for an outreach program that may end up violating the TCPA then you might be personally added to a class action and sued for your house and bank accounts. Terrible terrible stuff.

Always take the TCPA seriously folks. It really is a horrifying little statute. And seek the advice of qualified and experienced counsel before starting any new outreach campaign.

Wishing you a spooky and delightful Halloween weekend TCPA.World.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 301
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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