Telephone Consumer Protection Act (TCPA)

Signed into law in 1991, the Telephone Consumer Protection Act (TCPA) is an outdated consumer protection statute restricting telemarketing calls, junk faxes and the use of automated telephone equipment. Much has changed since 1991. While the wireless marketplace and consumer use of this technology has rapidly evolved in the last twenty years, the TCPA has not. Plaintiffs’ lawyers are now exploiting the law’s outdated language and using conflicting federal court rulings to bring abusive and costly class action lawsuits against businesses. Reform is needed to clarify interpretation of the law and to protect businesses from these lawsuits. read more...



The TCPA allows consumers to sue companies for statutory damages of $500-$1,500 (depending on if the violation was willful) for each prerecorded call, specified autodialed call and unsolicited facsimile they did not consent to receive. At the time the TCPA was created, its sponsor, Senator Ernest “Fritz” Hollings (D-SC), explained the law was intended to facilitate actions in state small claims courts, which involve smaller sums and often do not require (or even allow) the participation of attorneys.

Today, however, TCPA cases are anything but small. Trial lawyers have used the law to file large class action lawsuits. The defendants in these cases are no longer just abusive telemarketers; they are businesses, big and small alike, forced to choose between settling the case or spending significant money defending an action where the alleged statutory damages may be in the millions or billions of dollars. Further, many of these companies are being sued for reasons outside of their control, such as dialing a number provided by a customer that was later reassigned to another party, or because an unaffiliated third party mentioned their products via phone call or text in an advertisement sent to consumers. One wrong call can be the basis of a class action lawsuit alleging millions of dollars in statutory damages and seeking discovery into every single call placed by that company to its customers going back four years. The risks of financial and reputational ruin strong-arms businesses into entering sometimes massive settlements even where there is no evidence of wrongdoing.

The growing trend of TCPA litigation already has caused many companies to consider discontinuing the provision of helpful information to customers, such as prescription availability, credit card fraud alerts or airline changes or cancellations.

Modernization of the TCPA is critical to resolving these issues. Businesses should not be faced with an untenable decision: whether to curtail communications with their customers because of the severe risk of class action litigation caused by the manipulation of an out-of-date statute by plaintiff attorneys.

Research

Engineered Liability: The Plaintiffs' Bar's Campaign to Expand Data Privacy and Security Litigation

April 19, 2017 | As data breaches are becoming more commonplace, the plaintiffs' bar is engineer a staggering expansion of liability in the areas of privacy and data security. Class action lawyers are pursuing data privacy cases and amassing fortunes even where no one has been harmed. This paper examines the data privacy and security legal landscape, plaintiffs' bar tactics, major cases and settlements, and a suggested framework for reform.

The Trial Lawyer Underground: Covertly Lobbying the Executive Branch

September 30, 2015 | This report highlights examples of the quiet and effective influence the American Association for Justice, the organization that lobbies on behalf of the plaintiffs' bar, exerts within the Executive Branch.

Additional Resources

All Results for Telephone Consumer Protection Act (TCPA)

"Frequent TCPA Lawyer" Settles Lawsuits

April 27, 2017 | News and Blog

Forbes/Legal Newsline reports that a lawsuit between a "prolific plaintiffs' lawyer" and a defendant accusing him and his plaintiff of manufacturing lawsuits has been settled. Read More »

Engineered Liability: The Plaintiffs' Bar's Campaign to Expand Data Privacy and Security Litigation

Author: Divonne Smoyer and Kimberly Chow, Reed Smith LLP | April 19, 2017 | Research

As data breaches are becoming more commonplace, the plaintiffs' bar is engineer a staggering expansion of liability in the areas of privacy and data security. Class action lawyers are pursuing data privacy cases and amassing fortunes even where no one has been harmed. This paper examines the data privacy and security legal landscape, plaintiffs' bar tactics, major cases and settlements, and a suggested framework for reform. Read More »

In the News Today - April 18, 2017

April 18, 2017 | News and Blog

Texas plaintiffs' attorney Mark Lanier is co-hosting a fundraiser for Sen. Graham this week, "spreading talk among conservatives that Graham has allied himself with plaintiff attorneys who have a huge financial incentive to block bills that sailed through the House of Representatives earlier this year." Read More »

U.S. Court of Appeals Rules FCC Exceeded Authority as Relates to Fax Opt-Out Rule

April 03, 2017 | News and Blog

In 2014 the FCC upheld that its rule implementing The Junk Fax Prevention Act of 2005 required opt-out notices not only on unsolicited faced ads but solicited ones as well, writes B&C. Read More »

In the News Today - March 28, 207

March 28, 2017 | News and Blog

Litigation under the Telephone Consumer Protection Act (TCPA) continues to grow, especially as relates to retail text message programs. "Consumers and businesses have a reciprocal interest in text messaging's unparalleled ability to provide important information that is timely and tailored," but a July 2015 FCC ruling made TCPA "compliance impossible" for many companies as they are now expected to practically "record and review every single conversation between customers and employees." Read More »

In the News Today - March 15, 2017

March 15, 2017 | News and Blog

The Telephone Consumer Protection Act (TCPA) "has turned a shoebox full of cheap cell phones into a treasure chest" as plaintiffs across the country look to make money off this outdated federal law. With numerous examples of abusive TCPA suits, including a Polish immigrant who had filed more than 30 TCPA lawsuits had has made approximately $800,000 off his litigation, a three-part series from Legal Newsline/Forbes underscores just how out-of-hand this practice has become. Read More »

Petition Before the FCC Would Open Flood Gates For Abusive TCPA Litigation

March 14, 2017 | News and Blog

Plaintiffs' lawyers and a few enterprising plaintiffs have been taking advantage of the outdated Telephone Consumer Protection Act (TCPA) by filing class action lawsuits against companies large and small for doing such things as sending text messages to their own customers. Read More »

In the News Today - March 8, 2017

March 08, 2017 | News and Blog

The Telephone Consumer Protection Act (TCPA) is "among the most commonly litigated consumer protection statutes." A defense against TCPA suits that is gaining traction, according to lawyers from Balch & Bingham, is the argument that individualized questions of consent make class treatment of a TCPA claim inappropriate. Read More »

In the News Today - March 1, 2017

March 01, 2017 | News and Blog

Lawyers have seen an increase in Telephone Consumer Protection Act (TCPA) litigation in which customers claim they withdrew consent to receive text messages, but admit they did not follow the directions set out by the company as to how they should submit their withdrawal. Read More »

In the News Today - January 31, 2017

January 31, 2017 | News and Blog

Lisa Rickard, President of ILR, submitted a Letter to the Editor at the Hartford Business Journal relating to a recent article on the Telephone Consumer Protection Act. "Consumers do not benefit from TCPA lawsuits, nor do small Connecticut firms. It's the plaintiffs' lawyers, who rake in millions of dollars in settlement fees in class-action cases." Read More »

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