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Our readers may recall a recent piece in which we discussed a new flavor of Telephone Consumer Protection Act ("TCPA") lawsuit being filed by The Law Offices of Jibrael Hindi ("Hindi"). Although the majority of cases Hindi files remains TCPA quiet hours lawsuits, Hindi's filing of TCPA actions alleging that companies failed to honor consumer opt-out requests has steadily increased. Below, we discuss: (1) the subject TCPA-implementing regulations in detail; (2) the claims alleged in these TCPA opt-out cases; and (3) what companies should do if they become the target of a Hindi TCPA opt-out lawsuit.
Hindi TCPA Opt-Out Lawsuits
Pursuant to its statutory implementing authority, the Federal Communications Commission ("FCC") enacted TCPA regulations requiring companies that deliver telemarketing calls/texts to institute procedures for maintaining a list of telephone numbers associated with people who request not to receive future commercial calls/texts. Under the regulation, companies that deliver telemarketing calls or commercial text messages, at a minimum, must: (1) have written policies for maintaining do-not-call lists; (2) inform and train employees about their do-not-call lists; (3) record consumer requests not to be contacted and place consumer names and telephone numbers on do-not-call lists at the time requests are made. Consumer do-not-call requests must be honored within a reasonable time from the date the requests are made, but this period may not exceed ten (10) business days from the receipt of the subject do-not-call requests; and (4) provide consumers with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted.
Similar to Hindi's TCPA quiet hours cases, the allegations in Hindi's TCPA opt-out lawsuits largely follow the same basic playbook – specifically, consumers claim that they: (1) received telephone calls/texts (usually text messages) from companies; (2) responded to the text solicitations with a "stop" instruction or made a verbal request on the phone requesting that companies stop contacting them; and (3) notwithstanding their requests, received subsequent calls/texts from these companies. As alleged in these Hindi TCPA lawsuits, companies engaged in this conduct: (i) lack procedures for maintaining lists of consumers who requested not to receive calls/texts; (ii) fail to train their employees who are engaged in telemarketing; and (iii) fail to maintain internal do-not-call lists.
What Should Companies Do If They Are Named in a Hindi TCPA Opt-Out Lawsuit?
Companies that maintain internal do-not-call lists and otherwise comply with the minimum requirements set forth in the regulations are not necessarily safe from Hindi TCPA opt-out lawsuits. Because compliance with the regulations is an affirmative defense, companies named in TCPA opt-out lawsuits must be able to establish that their policies and procedures are reasonable under the law.
Consumer protection statutes, such as the TCPA, continue to provide the plaintiffs' bar with avenues to pursue litigation, and these Hindi TCPA opt-out lawsuits are but the latest example. Complying with the TCPA and other federal and state marketing laws requires the guidance of experienced counsel. The attorneys at Klein Moynihan Turco routinely: (1) advise clients on telemarketing law compliance; and (2) defend companies against TCPA class action lawsuits.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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