The Telephone Consumer Protection Act (TCPA) is an outdated statute, well overdue for an update. Its flaws and inconsistencies have created a cottage industry of lawsuit-mill litigators. Additionally, the TCPA provides a private right of action, which allows individuals, and not just the government, to file lawsuits. Combined with uncapped statutory damages, the trend of litigation abuse of the TCPA has worsened and threatens companies nationwide in nearly every industry.
The most basic cost of these lawsuits is the standard $500 per TCPA violation (up to $1,500 per willful violation). However, there can be additional damages beyond these specific monetary penalties. A TCPA lawsuit can waste a company’s time and resources, create unexpected brand damage, and marks them as a target for repeat litigation. Some cases also result in burdensome injunctions, preventing a business from certain future operations. While many of the most newsworthy TCPA lawsuits involve large, prominent companies, small-to-midsize businesses may be at even greater risk as the cost of settlements and class actions can be more devastating, both financially and in terms of reputation.
Because the TCPA is a strict liability statute, there is generally no forgiveness, even for good faith honest mistakes. Litigators and professional plaintiffs exploit this, often manufacturing lawsuits through duplicitous means. This guide covers some of the most frequently used techniques by litigators, the sorts of businesses that they target, and some of the most prominent and illustrative TCPA judgments and settlements.
TCPA Litigator Tricks
Litigators often make use of particular tactics and deceptive practices in order to precipitate lawsuits. Among the most dangerous of these tricks are the following:
Dual-Purpose Phone Lines
Sometimes referred to as “mixed-use” lines. Litigators will use one phone number for both business and personal purposes, potentially entrapping marketers who believe they are making calls to a business line when, in fact, it is a personal line for TCPA purposes.
Waiting to Receive Multiple Calls Before Threatening Litigation
Because TCPA fines are levied on a per violation basis, litigators can juice their numbers by intentionally allowing a company to call them multiple times before they take action against the company.
Bullying for an Out of Court Settlement
Litigators will ambush defendants by threatening litigation with the intent of forcing an out-of-court settlement.
Personally Targeting Corporate Officers in Lawsuits
By naming corporate officers and owners rather than merely the company itself, a litigator can apply additional pressure on a defendant.
Litigators and their professional plaintiff accomplices will give consent for their numbers to be called. But rather than answering when called, they will call back from a different cell phone number for which they have not given consent, and talk just enough to identify themselves before hanging up, thus baiting agents into calling back without consent.
Taking Advantage of Reassigned Numbers
Litigators and serial plaintiffs will purchase multiple cell phones with the intent of manufacturing claims using phone numbers they know have been reassigned from their original owner.
TCPA Lawsuit Targeting
Litigators will often target companies with particular, perceived vulnerabilities. Among the sorts of targets for unscrupulous litigators are the following:
Companies with Deep Pockets
As demonstrated in the case studies in the guide, large companies are often targets of large TCPA lawsuits, resulting in very large payouts.
Companies with a History of TCPA Lawsuits
Once a company has paid out a large settlement or judgment for TCPA violations, it can attract more litigators, like sharks drawn to blood in the water.
Litigators will take advantage of companies who have inadequate opt-in language or poorly written terms of service. Litigators will also focus their attention on companies whose essential business structure puts them at greater risk for TCPA violations, such as collections agencies.
Companies that May Not Know the TCPA Applies to Them
Many companies operate under the mistaken assumption that they are not bound to TCPA calling restrictions, including text message marketers, companies that focus on business-to-business (B2B), political organizations, schools, nonprofits, and public utilities. Another similar category of businesses at risk are those who purchase leads from or outsource calling duties to third party vendors and do not account for the possibility of their vicarious liability under the TCPA.
Don’t call known litigators and serial plaintiffs
It should go without saying that the easiest way to avoid a lawsuit is to not contact the people who are likely to sue you. As you’ve learned in this guide, TCPA litigators and professional plaintiffs find ways to infiltrate your data, and trick you or your employees into making a mistake. Your best defense is to remove these predatory individuals from your data before they take you out of business.
Suppress numbers against the Do Not Call list
Telemarketers are required to suppress phone numbers on the National Do Not Call Registry. Some states have their own local DNC lists as well, in addition to the Federal list.
Check for reassigned numbers
With approximately 100,000 mobile phone numbers reassigned by wireless carriers every day, it is absolutely essential to check your data for reassigned numbers. Phone numbers may change, but the risk of TCPA liability is inevitable.