TCPA Expert Witness Views of the Class Action
Over the past few years, I have served as an expert witness in numerous Telephone Consumer Protection Act (TCPA) class action lawsuits. My primary areas of expertise include articulation of compliant process evidence, technical analysis of dialers to determine if they are an automatic telephone dialing system (ATDS) or autodialer, historical identification of mobile phone subscribers/users, evaluation of industry standards of care, and historical call data analysis. Through my work as an expert witness, I’ve had the opportunity to see firsthand the common issues surrounding TCPA violations.
While the vast majority of cases involve calls or texts to mobile telephones using an ATDS, I am very surprised to see that fax cases are still fairly common as well. The healthcare industry still relies upon the fax quite routinely. Besides medicine, mortgage banking, insurance agencies, and other highly regulated industries rely on faxes as faxed contracts are generally considered to be as legally binding as a signed-in-person version. These class action suits center on allegations that faxes were sent without express consent. Another common element are allegations that faxes do not contain the required disclosures or an opt out mechanism. Companies that send faxes must remember that a fax machine can be connected to ANY landline and there can be significant turn over or churn of people within organizations and businesses themselves. These companies must ensure they can prove previous consent was obtained and that the faxes include the required disclosures and opt out notice. Faxing remains a high risk activity if it isn’t done in accordance with the Junk Fax Protection Act.
Another high risk area is wrong party contacts using an ATDS. This is an extremely difficult area as there is no publicly available, 100% reliable source to know when mobile phone users change. Debt collectors are highly susceptible to this problem when skip tracing is used or repeated calls to debtors are made using an ATDS after being informed that they have reached the wrong party. Companies should implement procedures to ensure agents are attuned to any signals that may indicate wrong party contacts including voice mail messages, disconnect or inactive disposition tones, and consumer claims that a wrong number has been reached. Consider manually dialing questionable mobile phones and be prepared to prove that you have done so. We’ve seen failures in this area lead to multi-million dollar litigation.
Given that TCPA class actions most often involve historical calls tracing back several years, potential class members often reach multiple, even thousands, of calls, texts, or faxes at $1500.00 per violation. This doesn’t include the costs for defense including attorney’s fees and internal costs to gather evidence, response to subpoenas, submit to depositions, and so on. Know the rules, understand the risks, and implement common sense procedures to protect your company’s interests.
We understand the various and evolving requirements impacting your consumer contact activities can be difficult to navigate and to accommodate into existing compliance efforts. For more information regarding the impact of the TCPA or any of the state or federal consumer contact requirements, please reach out to firstname.lastname@example.org.
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