Practical TCPA Defense Tips

  1. Avoid TCPA claims in the first place by refraining from autodialing/texting cell phones or delivering prerecorded messages without express written consent.  Also, telemarketers should scrub state and federal DNC lists unless they have consent, and honor all opt-outs promptly.  If you have consent, be sure you can prove it through good record keeping.
  2. When the demand or summons arrives, immediately preserve all relevant evidence and contact your legal department or outside counsel.  Relevant evidence includes, for example, call logs/CDRs, consent records, scripts, call recordings, P&P and related correspondence.
  3. Investigate potential exposure.  Did you make a mistake?  If so, how (correct it).  If you were in compliance, can you prove it?  If so, how (gather the evidence).
  4. Request answer/response extensions if needed, but be aware that in some courts, a motion or other filing requesting the extension must be filed.  Not all courts allow you to rely on an informal extension from opposing counsel.  This often requires the involvement of litigation counsel early on.
  5. Consider early settlement opportunities, especially if you can confirm you have liability.  If the plaintiff will settle for an amount less than the cost of an initial answer or motion to dismiss, you may seriously want to consider putting that money toward a settlement, rather than to your lawyers.  Look at the math of it. Counsel can often help you make wise settlement decisions, whether you ultimately fight the case or not.
  6. If you elect to fight the case, do so aggressively.  Consider filing a sold motion to dismiss the case on multiple grounds, rather than merely filing a boilerplate answer.
  7. Numerous avenues of attack exist in TCPA cases.  For example, we often motion to dismiss cases under the 2016 Spokeo Supreme Court decision which held plaintiffs need to have suffered actual harm.  We also motion to dismiss when a civil complaint does not state the plaintiff’s phone number, dates of the alleged calls, type of each call and whether it was answered.  We also motion to stay (postpone) cases pending an outcome in the important ACA International lawsuit against the FCC regarding what an autodialer is.

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