Posted in Consumer Protection on June 7, 2019
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Consumers are increasingly becoming aware of their rights with regard to telephonic communication and privacy, known as the Telephone Consumer Protection Act (TCPA). Here is more information on TCPA cases of violation.
The Telephone Consumer Protection Act (TCPA) established in 1999, provides consumers with the ability to sue for any unsolicited advertising call, message or fax when made through an automated telephone dialing system (ATDS) or by using pre-recorded messages. Since communication with customers has become heavily dependent on mobile technology, most businesses find themselves at the risk of violating the TCPA.
In 2015, The Federal Communications Commission (FCC) released an Omnibus Declaratory Ruling and Order which clarified many terms regarding the law. Since then, there has been a substantial spike in TCPA lawsuits. The U.S Chamber Institute for Legal Reform conducted a study of sources and targets of TCPA lawsuits between August 2015 and December 2016. It found that over 3,121 TCPA cases were filed during this period.
Most of the TCPA cases of violation result in lawsuits that are class action litigations. These involve a large set of consumers — often in millions — who are affected by the company’s TCPA violations of the law. These cases are more likely to win than lawsuits that are filed by individuals. They also cost the company more in statutory damages.
For a class action lawsuit, the claim must affect multiple individuals (for instance, robocalls as part of a new ad campaign) and should not be an odd case. The class members need to also have similar claims and situations. For instance, if the plaintiff has not provided prior express consent, potential class members should also have not provided prior express consent. Hence, many people may submit claims during a class action lawsuit but only a few may be valid.
5 Prominent TCPA Cases of Violation
While TCPA violation lawsuits (class action lawsuits, in particular) are on the rise, there are a few cases that have managed to grab public attention due to a large amount of settlement or the company’s name itself. These lawsuits tend to tarnish a company’s image and make consumers hesitant about establishing any business relationship with the concerned company. Listed below, are some of the cases that have managed to make headlines:
1. Capital One
Several lawsuits were consolidated in 2014 to charge Capital One and three other companies, with a high cash settlement of $75.5 million. Capital One Financial Corp. (along with three debt collection services) was accused of making multiple calls using an ATDS to collect credit card debts. These calls were made without prior express consent and were hence violating the TCPA.
While Capital One contributed $73 million to the settlement fund, the three other defendants - Alliance One Receivables Management Inc., Capital Management Services L.P. and Leading Edge Recovery Solutions, LLC were charged a total of $2.5 million. All the defendants were further instructed to ensure their telemarketing practices were in compliance with the TCPA.
2. Wells Fargo
Wells Fargo has fallen prey to multiple TCPA violations over the past few years. In 2016 (Markos v. Wells Fargo) they were accused of calling consumers using an automatic telephone dialing system (ATDS) without the consent of consumers. The calls were non-emergency, debt collection calls and texts made between November 2011 and February 2016. Wells Fargo decided to settle the lawsuit for $16.3 million. The class action, consisting of over 3 million class members received $25 to $75 each.
Another case disregarding the consumer’s prior express consent was Cross v. Wells Fargo in 2016. Here, the company settled for $30 million for automated calls made to consumers regarding deposit accounts. This pattern continued in 2017 as well. The company agreed to settle two class action settlements in February 2017 — Prather v. Wells Fargo Bank and Luster v. Wells Fargo Dealer Services, Inc. et. al. The former is concerned with calls made using an ATDS to student loan borrowers between April 2011 and December 2015. It was settled with the plaintiffs for $2 million. The latter was a case of debt collection robocalls, made to consumers who had not consented to receive calls made by an ATDS. The company paid a settlement of $15.7 million to the 3.38 million class members.
3. Dish Network
In a historic TCPA violation lawsuit, Dish Network was charged a $280 million civil penalty for placing illegal robocalls to numbers on the National Do Not Call Registry. Four states — California, Illinois, North Carolina and Ohio along with the Federal Trade Commission (FTC) sued Dish Network in March 2009. Aside from calling numbers on the Do Not Call list, they were also accused of using telemarketers to deliver pre-recorded messages. They were charged with violation of TCPA and the states’ telemarketing laws.
According to the TCPA, each violation (call) must be charged $500. This would have amounted to a penalty of $8.1 billion. However, the court exercised its discretion and charged the company with 20% of its profits in 2016. It also imposed a 20-year plan for supervision of the company’s telemarketing. Dish Network was keen that the third-party telemarketers not only exercised their own independent efforts of telemarketing but also intentionally hid them from the company.
4. Time Warner Cable
In a case of reassigned numbers, Time Warner Cable had to cough up $229,500 for harassing a woman with 153 calls made using an ATDS. In the case King v. Time Warner Cable, the company continued calling the plaintiff multiple times and left pre-recorded messages about unpaid bills. The calls were intended for a consumer of TWC, Luis Perez who had consented to receive such calls. However, as the number was reassigned to King, she became the “called party” and hence the violation of TCPA was recognized.
Further, King requested for the calls to stop and clarified her identity. In March 2014, King sued the company. However, she continued receiving these robocalls. The 74 calls that took place after this were considered by the court as willful violations of the law. Each of these violations were charged $1,500.
5. American Eagle Outfitters
American Eagle Outfitters (AEO) was accused of sending unauthorized spam messages to over 600,000 consumers. Christina Melito and three other individuals filed a case alleging TCPA violation in April 2014 against AEO. A class action against the retail brand was brought to the federal court in New York. Experian Marketing Solutions, a third-party messaging service hired by AEO, was also accused in the lawsuit. Although the allegations were denied, AEO agreed to a cash settlement of $14.5 million. The class consisted of over 38,000 valid claims and its members would receive approximately $232 each.
Experian Marketing Services raised objections that the plaintiffs could not sufficiently demonstrate that they suffered a concrete injury due to the spam messages, and thus lack Article III standing. However, in 2017, the court ruled that alleging a statutory warning was sufficient to establish concrete injury. The invasion created by automated spam messages and calls was the reason the TCPA was established. The court found that showing the proof of receiving unwanted telephone contact was enough to establish concrete injury.
Precautions for Business
To ensure your company does not become the next target of a TCPA class action lawsuit, it is advisable to take certain precautions to ensure compliance with TCPA. Based on prior TCPA cases of violation lawsuits, there are three major things that can protect your business from an expensive lawsuit:
- Consent: Most TCPA violations occur due to lack of prior express consent. Sometimes it is possible to prove “implied consent”. However, a consent form explicitly requesting permission to contact the consumer with automated calls can help your company avoid millions of dollars in damages. The consent form needs to be clear and unambiguous so that it is considered valid in court. It needs to have the signature of the consumer along with the telephone number that can be called.
- Documentation: In some cases, the inability to produce evidence or records of compliance can be a costly mistake. Documenting consent as well as the processes of making automated calls can be handy when fighting allegations of TCPA violations. This includes records of formulating lists of numbers to contact, how these lists are scrubbed and so on. Established and detailed records documenting your TCPA compliance efforts will not only avoid a violation but can also serve as competent evidence in a lawsuit.
- DNC: Finally, the most important aspect for companies is to ensure they consider the National Do Not Call Registry for numbers that cannot be contacted by autodialers. There may also be state-specific or company-specific lists that can be consulted to scrub for numbers that are off-limits. This step is crucial for any company or third-party telemarketer.
These suggested precautions only serve to be preventive measures. For a more effective solution, an attorney can be consulted to help you tackle your case. Whether you are a business that is looking to enforce TCPA compliance internally or a victim of unauthorized robocalls, our firm is experienced in the nuances of the TCPA cases. Contact our team of attorneys to help you find the best legal step forward.