New Telephone Consumer Protection Act: Boon or Bane to Your Company?
Overview:
The Telephone Consumer Protection Act (TCPA) is a major litigation risk for companies, hospitals, and health care providers who use text messages, artificial or pre-recorded voice messages and other automated dialing technologies to reach customers and patients. Hundreds of class action lawsuits have been filed in recent years seeking damages that amount to millions of dollars in TCPA violations, with the largest TCPA settlement to date reaching upwards of $32 million. New regulations remove key exemptions that previously served as safeguards against TCPA liability. In response, companies need to revise their practices, andhospitals and health care providers need to revise hospital admission forms, to avoid liability and potentially catastrophic penalties under the TCPA.
The Federal Communications Commission (FCC) final regulations requiring prior express written consent for autodialed telemarketing calls to cell phones and pre-recorded telemarketing messages under the TCPA went into effect on October 16, 2013.
With these latest FCC actions in mind, telecommunication companies, mobile engagement providers, mobile marketers as well as any company that engages in mobile marketing campaigns face considerable challenges in creating and implementing effective TCPA compliance guidelines and TCPA compliant marketing programs.
In a two-hour live webcast, the Knowledge Group is assembling a panel of distinguished thought leaders and practitioners to help companies who engage in mobile marketing and various other types of mobile communications understand new compliance guidelines to prevent their businesses from falling into the pitfalls of FCC actions and the extremely costly class action litigation.
Some of the key areas addressed in this webcast:
- TCPA: an Overview of New Regulations
- What Calls Are Affected?
- What Is an Automatic Telephone Dialing System?
- What Is Express Written Consent?
- What If There Is an Existing Business Relationship?
- Are There Any Exceptions?
- What Are the Penalties for Noncompliance?
- New Regulations Already in Effect
- Compliance and Best Practices
- TCPA Litigation Trends and Risks
- Up-to-Minute Regulatory Updates
Agenda:
Vinson & Elkins LLP
- TCPA litigation has exploded in the last several years, particularly in terms of class actions being filed, in large part because the damages are set by statute and violations are relatively easy for plaintiffs to prove.
- This litigation trend will be fueled further by new FCC regulations under the TCPA that went into effect in October, requiring telemarketers to receive express written consent from consumers before making any calls or sending any texts to them, with no exception for existing business relationships.
- Further feeding litigation and complicating matters for companies, the U.S. Supreme Court has approved the increasing federalization of TCPA law, to the extent that federal courts now are hearing more TCPA disputes and more boundary questions between federal and state jurisdiction are arising.
- The upshot of these developments is that companies need to be even more vigilant about strict compliance with the TCPA, lest they be sued in state or federal court for a myriad of small and very technical violations of the law that carry heavy penalties.
Perkins Coie LLP
- The impact of the new FCC regulations that went into effect on October 16, 2013
- Issues currently pending at the FCC under the TCPA including the meaning of “capacity” in the definition of an ATDS, third party consent, informational messages and retroactivity of the new regulations
- If not being covered anywhere else, analysis of defendant's TCPA exposure—the Fee Awards
- Best practices to avoid being a defendant in a TCPA class action
Troutman Sanders LLP
- TCPA classes may be more difficult to certify/settle after Smith v. Microsoft and Connelly v. Hilton
- Smith v. Microsoft
- Superiority
- Individual testimony is needed to determine a myriad of facts, including identities of subscribers and “prior express consent”
- TCPA is not a statute that was truly meant for class actions
- Venue does not make most logistical sense because class rep is a resident of Illinois and contacts to California are minimal at best
- “Manageability” requirements post difficulties, i.e., notice, calculation of individual damages, and distribution of damages
- Significant evidentiary concerns regarding “prior express consent”
- Narrowing the proposed class to those who actually received the Xbox texts is difficult
- Plaintiff only has phone numbers but not whether the persons who currently have those numbers were the people who received the text five years prior
- Connelly v. Hilton Grand Vacations Co., LLC
- Predominance
- Express consent was provided in a variety of factually different scenarios
- Various forms of interaction with Hilton, which are relevant to a determination of prior express consent
- Individualized statutory damages are ineligible for (b)(2) certification, regardless of parallel request for injunctive relief
- Fields v. Mobile Messengers Am., Inc.
- Predominance
- Issue of consent could not be proven on a class-wide basis because individual questions would abound
- Emerging Trends (or Not?)
- Chyba – strict liability under the TCPA up for debate?
- Sabre – further evidence that Mais is an outlier with regard to prior express consent
- Dish Network – enforceability but unreviewability of FCC regulations
Hall, Render, Killian, Heath & Lyman, P.C.
Hall, Render, Killian, Heath & Lyman, P.C.
- What If There Is an Existing Business Relationship?
- Are There Any Exceptions (Healthcare Exception)
- What Are the Penalties for Noncompliance?
- New Regulations Already in Effect (October & January updates)
- Compliance and Best Practices for Healthcare Providers
Who Should Attend:
This is a must attend event for anyone interested in learning careful and detailed preparation for the New TCPA Rules.
During this live webcast you will hear:
- New guidance explained by the most qualified key leaders & practitioners.
- Hear directly from key regulators & thought leaders.
- Interact directly with panel during Q&A.
Jason A. Levine is a litigation partner in the Washington, D.C. office of Vinson & Elkins LLP. A versatile courtroom …
Debra is a seasoned litigator whose practice encompasses the litigation, arbitration and mediation of all types of intellectual property claims …
Chad is a partner in the financial services litigation practice of Troutman Sanders LLP, where he focuses on the defense …
Lea Lockhart practices in the area of health care law with a focus on health information technology, general business transactions …
Joshua Reading concentrates his practice on health information technology, business transactions and tax/tax exemption, with a focus on helping clients …
Course Level:
Intermediate
Advance Preparation:
Print and review course materials
Method of Presentation:
On-demand Webcast (CLE)
Prerequisite:
NONE
Course Code:
134578
NASBA Field of Study:
Specialized Knw and Apps
NY Category of CLE credit:
Skills
Total Credits:
2.0 CLE
2.0 CPE (Not eligible for QAS (On-demand) CPE credits)
Login Instructions:
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SPEAKERS' FIRMS:
About Vinson & Elkins LLP
For almost a century, Vinson & Elkins lawyers have provided innovative business solutions for clients whose needs are as diverse as the entities they represent. In today's challenging environment of global markets, volatile economies, and complex human and environmental issues, our law firm's time-tested role as trusted advisor has become even more critical. The depth and breadth of V&E lawyers' experience, combined with the responsiveness and efficiencies of the firm's global reach, enables Vinson & Elkins to serve clients from start-up, to the negotiating table and boardroom, before legislative and regulatory bodies, in the courtroom, and beyond.
Website: https://www.velaw.com/
About Perkins Coie LLP
With more than 900 lawyers in 19 offices across the United States and Asia, Perkins Coie is a leading international law firm that represents great companies across all industries and stages of growth—from start-ups to FORTUNE 50 companies. Perkins Coie's over 100-year tradition of partnering with our clients to build great companies has earned our firm the privilege of representing industry-leading clients such as Amazon.com, Microsoft, Boeing, Intel, Google, Starbucks and Honeywell, to name just a few.
Website: https://www.perkinscoie.com/
About Troutman Sanders LLP
Troutman Sanders LLP is an international law firm with more than 600 lawyers and offices located throughout North America and Asia. Founded in 1897, the firm’s lawyers provide counsel and advice in practically every aspect of civil and commercial law related to the firm’s core practice areas: Corporate, Energy and Industry Regulation, Finance, Litigation and Real Estate. Firm clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry. See troutmansanders.com for more information.
Website: https://www.troutmansanders.com/
About Hall, Render, Killian, Heath & Lyman, P.C.
Hall, Render, Killian, Heath & Lyman is a national health law firm with offices in Indiana, Kentucky, Michigan and Wisconsin. The firm provides organizations in the highly regulated health care industry with full service legal representation. With more than 160 attorneys, Hall Render represents over 500 health care organizations, including hospitals and health systems, physician practices, life sciences firms and nonprofit organizations. Hall Render focuses its practice in health law and is recognized as one of the nation's preeminent health law firms. Learn more at www.hallrender.com.
Website: https://www.hallrender.com/