S3 E25: What’s Driving TCPA Lawsuits

Audio version

What’s Driving TCPA Lawsuits

Transcript

Jordan Eisner 

OK, here we are. So hello everybody. Thank you for joining us for another episode of Compliance Pointers, brought to you by none else than CompliancePoint. But today I’m joined by Alex Krasovec of Manatt. She’s a partner at Manatt.

She specializes in TCPA compliance. She’s got over 10 years focusing on TCPA compliance and class action defense. Hundreds of these matters. She’s worked in state and federal courts, so.

As our listeners and viewers will soon find out, she’s a highly sought after advisor in the space. So Alex, great to have you on.

Alexandra Krasovec

Jordan, great to be here. Thanks for asking me to join you.

Jordan Eisner

Yeah, yeah, this is good. I got to meet Alex earlier this year at our CPX convention and so she’s very generous with her time at at the event. I know that a lot of our attendees enjoyed your sessions, Alex. I think it was one of the more downloaded content after.

I don’t know if you got that feedback or not yet from from some of the people behind the strings, but and then you stayed on. I think you were the few people that said that last night. So it’s good we’re able to build a relationship and you know, here we are now doing this podcast together.

And we’re going to be talking about what’s behind the spike in TCPA lawsuits. I think, you know, I have some ideas that probably don’t even have anything to do with TCPA, but just, you know, the COVID pandemic and maybe that was part of the reason the other things to focus on for another years. But regardless, there’s been a spike.

And I don’t know the exact numbers, but looks like there’s been a little bit of a return to what they were previously. If not higher, you’ll be able to correct me on that. But we really want to get into why that is, what those allegations are.

What organizations are maybe what common fit pitfalls they’re falling into and how that can lead to class actions or other type of issues and allegations, how to best avoid those, what to do in the event that you get a demand letter or you get a class action or a suit brought against you and maybe touch on a couple.
Other recent events. So Alex, before we dive in, anything else you would want our listeners or our viewers to know about you, your experience, your focus at Manatt, what you do?

Alexandra Krasovec

Just I guess aside from what you’ve already mentioned that I’ve been in this space for a really long time now, basically since TCPA litigation really started to spike exponentially during the 20 teens. And so I’ve seen pretty much everything happening real time.

All the ebbs and flows and the FCC activity, various Supreme Court decisions. So I have been living what we are about to talk about. And you know, the other thing I would mention is that I am one of many TCPA attorneys at my firm. We have an entire.

Practice group that does this. We sit within the Consumer Protection, Advertising and Competition group, which also deals with all kinds of other advertising and consumer protection issues in addition to the TCPA. So we are all keeping an eye on the various pieces that can impact the.

Developments in this space. And you know, if you ever need a resource, and I’m sure you’re going to tell everyone this at the end anyway, but you know, feel free to come to me, whether that’s TCPA or something TCPA adjacent.

Jordan Eisner  

Yeah, well put. No, thank you for adding that. I think that’s important and also brings to the point that you know what we discussed today is not legal advice, right. And if if they do want to and I and I will say at the end too for our listeners and watchers, just as a reminder where to contact Alex, but if you have questions about what we discussed today or seeking that sort of advice, you need to have a conversation with her separately and not run on what you hear today. Yeah. All right. So why the rise in TCPA suits and if maybe no clear reason why other than, you know, just ask.

Quo and getting back to what it was, where is it maybe different from what you’ve seen before? What sort of claims and allegations are you seeing a pattern of?

Alexandra Krasovec

So I think there are some simple answers to this question and then there are kind of bigger picture, more complex explanations. So big picture historically since the 20 teens, TCPA litigation has been increasing.

There may have been a leveling off a couple of years in that time frame, but coming to today, TCPA is just one of the most, if not the most popular claim that can be brought in federal court. There are reasons why that happens at various points in time. Sometimes it is because.

Jordan Eisner  

Yeah.

Alexandra Krasovec

Because there’s some low-hanging fruit theories that are, you know, being pursued by plaintiffs and the courts are allowing it. Other times it’s broader economic issues. I mean, as you probably know, anytime there is, you know, economic downturn or uncertainty.

People look for where they can get money and the TCPA is known to be a very large cash cow, so there is a bit of that.

Jordan Eisner 

And marketers get more aggressive, right?

Alexandra Krasovec

That can happen too. So. So it’s interesting in the 20 teens, the uptick was because debt collection calls were really, really heavy. What we saw with the the pandemic is that when everyone went home, SMS marketing became a highly popular method. So there were a lot more companies in.

A lot more companies engaging in that kind of activity. Well, as you know, this is a really highly regulated activity. There are a lot of TCPA requirements that pertain to SMS marketing. And then kind of on top of that, there was this simultaneous decision by the Supreme Court in Facebook, where maybe some of the ATDS or automatic telephone dialing system theories were harder to prove. And so there was this big shift by the plaintiff’s bar to really focus on how they can get TCPA litigation in other ways.

And one of the main ways was by shifting over to marketing. So I think it was a combination of there was just more marketing happening, but also there was an impetus for the plaintiff’s bar to make that shift. And So what we saw is a move from what used to be the most popular ATV.

Yes claim over to a national do not call registry and now even internal do not call claims. Those I think are the most popular claims that I see today. They’re certainly the most frequent.

Jordan Eisner  

Huh. OK, not what I thought you were going to say.

Alexandra Krasovec

I’m curious what you thought I was gonna say.

Jordan Eisner  

Reassign numbers. Um, yeah, I mean, that was the new one.

Alexandra Krasovec

So there’s an answer there. Yeah, it actually that has to do with the facts. So I identified what the issues are, the most common claims. But the reason why those claims are most common have to do with a few factual issues, and reassigned numbers are absolutely one of them.

So there’s kind of two buckets of caller in a TCPA telemarketing case. There’s the caller who just fails to identify that what they’re doing is telemarketing and it needs to be treated as such. And then there’s the caller who thinks they know that they’re doing telemarketing. They think they have consent.

But then they’re contacting someone who actually didn’t give it to them, and that’s the reassigned number theory. And that is, you know, honestly, what the reassigned number database is intended to solve. But there has been a rather slow uptake of running reassigned number scrubs.

Alexandra Krasovec

And actually, when we get to discussions on what companies can do, that is one of the kind of very low hanging fruit things a company can do to reduce the odds of one of these cases.

Jordan Eisner  

So to play back some of those.

The reassigned numbers because you know they believe they have expressed written consent, but it’s not exactly that number because it has changed hands. Got it. And you nailed that. What about, you know, is it common to see cases where they think they’ve gotten expressed written consent from a legion?

Or an affiliate or partner, but it’s not indeed express or consent and they’re calling them. I mean, is that do you lump that into that category or is that a different one as well?

Alexandra Krasovec

That is another category that we see a fact pattern that we see generate these type of claims. Third party issues are one of the biggest drivers of TCPA litigation. Honestly, that happens for a few reasons. I mean, one, there’s just kind of this notion that people.

Hire vendors who know what they’re doing, and so they don’t need to worry about it. The vendor’s worrying about it. There’s also some lead fraud issues, which in the past I’d say probably were a little bit more rare, but recently I have seen a huge number of cases stemming from what was supposed to be.

An inbound inquiry, but it was actually generated by an outbound phone call and those can come in all kinds of flavors. But that is one of the more frequent fact patterns involving A vendor or a legion that I have seen. And what happens is then the person who ends up buying the lead thinks that they have consent and they’re making.

Jordan Eisner

 Right.

Alexandra Krasovec

Made those calls and the person who purportedly gave them consent either didn’t or did so only after an outbound call. So there’s still this TCPA exposure for that outreach, but there are plenty of other issues that arise, you know, even coming down to like that consent that that lead gen.

Is not adequate or fails for some reason. We’ve seen cases where that happens and probably some of the more famous ones where the consent gets invalidated in that fashion and then now there’s suddenly a class certification because the consent’s no good. So basically everybody who got called is now.

Subject to the TCPA, you know, requirements that you wouldn’t otherwise need if you obtain that consent.

Jordan Eisner  

Yeah. And I and I see sometimes too well they you know when we’re talking with organizations and there may be buying leads from a partner and they’re saying well they’re they’re TCPA certified or they you know they they come with a identification of of when they gave consent and that badge or that number comes with every single one. That’s good, but it’s not necessarily express written consent if the form wasn’t completed the right way, if it’s not made the appropriate disclosures and have some some affirmative action that they’re required to do.

Yeah. Do do you see some of that as well? Yeah.

Alexandra Krasovec

That is exactly right. Yes, there there is a this kind of misplaced assumption that if you are getting a, you know, a deny a token, you’re you’re getting some sort of lead ID that you are, you know, now all of a sudden, OK.

And the the rub with that is maybe and it really depends on the merits of that consent record. And so just because you have one of those, I mean that is a step in the right direction, right? As a caller, you have to have proof that you have consent. So having that record is useful proof.

But you also need the the foundational piece, which is, is that consent valid? Is the lead info good? There’s also kind of this this issue with IP addresses, right? Which is sometimes there’s mismatches in the content of the lead data.

Jordan Eisner  

Right.

Alexandra Krasovec

And so you end up needing to prove that actually the person who inputted that information is the plaintiff, and and that information may or may not match the lead data that was input in the form. So some of that is actually fraud on the part of the plaintiffs too, where they’re intentionally trying to draw TCPA claims.

And they’re doing that by submitting false lead information.

Jordan Eisner  

So you’ve seen that backfire on the plaintiff?

Alexandra Krasovec

There are some cases where that has. It is interesting. You would think courts would really not tolerate that kind of behavior, but I’ve seen a mix of of responses, you know, and and when you think about how that issue is brought to the fore, we sometimes do it in a standing argument.

Like this person doesn’t have Article 3 standing because they are not actually injured. They intended to do this, right? They wanted to draw a claim. There’s no injury here. Sometimes it’s a consent-based argument where you know you you are relying on the fact that the person actually gave the consent and so.

You know, even though they put in a different name, it’s still them. And so that’s a different argument. A lot of courts are hesitant to deal with any of those issues on the pleadings, even if you frame them as a standing issue under 12B1. So those kinds of issues oftentimes get pushed to a merit.
Question or a summary judgment motion. And the the net effect for the caller, of course, is your litigation fees increase and you’re stuck in the case longer.

Jordan Eisner  

I’ve asked one question and and listened to the complexities we’ve already gotten into with with this regulation. Yeah. And and I think you said at the top right, TCPA is one of the top where there’s class actions put together. I I think I.

Read somewhere. Maybe this was wrong, but it’s it’s like four times the next closest in terms of, you know, class actions put together. That could have been fake news, but.

Alexandra Krasovec

If that is, if that is what you read, it doesn’t sound implausible. Yeah, so there there’s a lot for plaintiffs to like about the TCPA and their attorneys, right? And so, so clearly most of the claims under this statute are technically strict liability.

Jordan Eisner  

Yeah.

Alexandra Krasovec

There’s not a defense. Or if you did it, it’s like too bad, so sad. There are some nuances and places we can push and arguments that we make on the defense side to either avoid that treatment entirely, challenge standing, challenge direct and vicarious liability. There are arguments we can make.

But it is definitely more difficult, right? And then so there’s that factor. There’s the the point that the the win for the plaintiff, if they succeed on this, is a very hefty fine in essence, right? 500 to $1500 per violation.

Alexandra Krasovec

Which, you know, if they have multiple claims, they might even seek multiple violations for the same call or text. So there’s a lot of money in it for an individual. And then the plaintiff’s bar, they can, you know, a little bit of rinse and repeat on their end with these pleadings and then if they make it a class action.

Enormous leverage against the company who is the recipient of that case, and then they can access attorney’s fees, which isn’t something that the TCPA actually provides for. But as you know, when you settle a class settlement, you will include attorney’s fees and if they were to pursue that to.

A judgment on a class basis, they could obtain attorney’s fees for that. So that’s how the plaintiff’s bar is making their money by bringing these cases. And then, you know, I will also point out, and this is not a topic that we can cover in a short meeting like today, but that there are state law components to this.

Jordan Eisner  

Oh, yeah.

Alexandra Krasovec

So a lot of times the plaintiffs will bring a state law claim also. And those state law claims, they’re, you know, different than the TCPA in some respects, but the ones that allow for a private right of action have similar type damaged provisions. And then there are often attorney’s fees in those state law claims. And so there’s lots of ways.

Ways for the for the plaintiffs bar and the plaintiffs to to make this profitable for themselves, which I think really is why there are so many of these cases, right? That’s kind of the gist of it.

Jordan Eisner  

Yeah, and and there you go. That will be Chapter 2 for the next podcast, the uh, the state versions. Um.

Alexandra Krasovec

Yeah, don’t don’t put me on the spot on those cause there’s there’s 50 different laws and and plus because every state you know has has multiple it’s it’s very complex, yeah.

Jordan Eisner

Yeah, OK. Multiple chapters. There you go. So I want to get to how organizations can try and minimize some of this, right, and not find themselves in a legal battle over TCPA. Some of it seems obvious with you spelling out what some of the issues have been. OK, we’ll just don’t do those issues.

You know, I’d like to hear your thoughts and advice for him, but I’m interested in the internal DNC and and that being a cause of a lot of the TCPA class out, you know, actions. I know that the TCPA enforces DNC rules and I know one is that.

You need to maintain your own internal DNC list specific to your company, so.

You I was unaware of that. So this one is being brought as a as a common allegation in these TCPA class actions that the plaintiffs attorneys are putting together that they’re violating their their own organizational internal DNC list. Am I thinking about this the same way?

Alexandra Krasovec

It is something like that. So what the what the TCPA requires is that if you’re engaging in telemarketing regardless of how you’re making those calls. So it could be automated system, but it doesn’t have to be, it could be live calls.

You are required to have internal policies and procedures that cover handling do not call requests and there’s a few elements to this. One of them is that you have an internal written policy, a do not call policy that you could produce on demand.

That discusses how it is you handle those kinds of requests. You must maintain an internal do not call list. You must train your employees on how to intake and handle do not calls and how that internal do not call list works. And then also when you’re making outreach, you need to include the seller information so.

Jordan Eisner  

No.

Alexandra Krasovec

The name of the company when you’re making that outreach, you can’t just send, you know, messages that don’t state who’s making that outreach. So all of those things need to be in the policies and practices, and that’s if you’re going to engage in telemarketing.

Those are the regulations, those are the requirements in the regulations. But what’s happened recently is that the courts have allowed the plaintiffs to bring claims that enforce that piece so.

Previously, a lot of the do not call claims like do not call in the notion of someone didn’t want that their name was on their phone number was on a do not call registry, right? It was on the national list. These claims are based on failure to honor a do not call request or failure to produce a copy.

Copy of your written do not call policy or possibly even just you didn’t have it right and and the court is allowing those claims under the same provision of the TCPA that they would for a national and do not call registry claim. So 227C.

Jordan Eisner  

OK. Yeah. You know, we did a podcast earlier with our expert witness group and and R&D reassigned numbers was a big deal for a lot of the cases that they were working. But I guess that’s, you know, their sample and in the cases they’re working, it’s interesting to see this.

You know, from a different perspective and some of the other reasons, you know, I’m familiar with the internal DNC list, I’m in familiar with a client face or I say client facing consumer facing DNC list. When we’re advising our clients a lot say, hey, you need to have an internal DNC list.

But you also need to have one that’s consumer facing and ready should you get that request to be able to send out mail out right to the consumer.

Alexandra Krasovec

Yeah, it is interesting you call it consumer facing. So sometimes we do that too like a shorthand. But I mean the regulations say it has to be a written policy. It doesn’t say if it’s internal or external, but you do have to produce it, right. And so a company might want, you know, more robust technical.

Jordan Eisner  

Right.

Alexandra Krasovec

Explanations in their policy that they would use internally. So sometimes we will help them, yes, yes, like help them with A1 pager that summarizes what their practices are that can be produced in response. So it it kind of it could be two policies and then turn one in a consumer-facing facing.

Jordan Eisner 

For training and yeah.

I think that’s a that’s a best practice. You know when we’re advising our clients is have one internal that’s relied upon and trade upon and built that way and then have one like you said, right Alex, a one pager to send out, you know, should you get, it’s a rare request, but you want.

Alexandra Krasovec

One.

Jordan Eisner 

Your agent or whomever is making these calls prepared to how to intake that request and ensure that that’s executed against because as you pointed out, it could result in class action.

Alexandra Krasovec

Absolutely.

Jordan Eisner  

OK, so other than the obvious, what what are some ways organizations can avoid?
What we’ve just talked about, you know, I think a lot of it, it’s pretty straightforward. Don’t, you know, have the policy like we like you just said. And I’ve always found that if you look at some of these regulations, it’s not all too complicated, but organizations continue.

To sort of fall in these, I won’t say traps, but to to have these issues arise right in these cases, like we’ve talked about the sheer volume of this, what you know, you have a friend of yours that decides to create a company, start doing outbound telemarketing.

What are the top things you’re telling your friend? Hey, make sure you’re not doing this.

Alexandra Krasovec

Yeah, well, so one is don’t automatically assume the TCPA doesn’t apply to you or you know, God forbid, you don’t even know the TCPA exists, which I think at this point most people do, but there was a time. OK, so the TCPA is highly risky. You don’t want to mess around with it the the cost.

Jordan Eisner  

Yes.

Alexandra Krasovec

Of a compliance program upfront as you’re rolling out a text program is so much less than the cost of litigating a case, right. So you know sometimes there’s a buy in step here, right where the caller really or the client needs to get buy in from the business that like we.

Actually need to look at this, but just know sending text messages, making telemarketing phone calls, those things are red flags for TCPA and they require some assessment. So what are the things that we assess or that we would recommend assessing if we had someone come to us and and ask for this?

One, you know, make sure you understand what the scope of your outreach is, what it’s about, what its purpose is, what its content is going to look like so that you know what consent you need. Understand how you’re making that outreach, what technology are you using? Because as you know as well as I.

The TCPA is triggered both by are you telemarketing and also by what technology are you using? And there’s different requirements for each of those. So, so understanding where your starting point is is very helpful.

Jordan Eisner  

Right.

Alexandra Krasovec

But once you’re doing the thing that needs the TCPA compliance, the main things we’re looking at is do you have adequate consent for that outreach? And if you know you need consent and you don’t have it, how can you get it? So working with an attorney who’s knowledgeable in this space on that piece.

Getting an internal do not call policy, a written policy in place, internal do not call list majorly important for all the reasons we already discussed having that training for your employees. There’s a counterpoint to this, which is the the revocation piece.

Jordan Eisner

 Right.

Alexandra Krasovec

It is, you know, the internal do not call list is one part, but recognizing what is a do not call request, recognizing what could be a revocation of consent, that’s very important. So that may be something that you cover with your training. You certainly need a protocol for this.

Jordan Eisner  

Yeah.


Alexandra Krasovec

Then there are the other kinds of scrubs that you might do. When you are doing a consented marketing text program, you oftentimes will find you have an exemption for a national do not call registry scrub because you have prior expressive.
invitation or permission, or you have an established business relationship, or you have both, but you know just pulse check that you actually don’t have to scrub the National Do Not Call Registry. Reassign number database scrubbing. Weigh whether that’s something you want to do. It is a great tool. It is a tool to help you identify who’s consent is no longer valid in your list, so you know you also have access to a potential safe harbor if you do it correctly and you get incorrect data coming out of the reassigned number database. So it is something definitely to consider, especially given how frequent reassigned number claims are.

Number claims are and why they actually tend to be the most dangerous of those telemarketing claims when you think you are doing everything right because that phone number has no consent. They could be on the National Do Not Call Registry, right? You just you open yourself up to so many claims by contacting people you don’t have consent for.

And then weighing the litigator scrub issue. I mean, I’m just going to plug that because a lot of the fraudulent claims are coming from litigators that do this all the time. They know how to kind of work the system to make it a case for them. So, you know, just not having them on your list, not a bad idea.

Jordan Eisner  
Mm-hmm. Down.

Alexandra Krasovec

And then we already talked about compliance programs internally. I do want to mention strong third party practices. For me that’s really important. If you’re hiring vendors, you’re using lead generators, you are selling leads, your your contracts need to.

Allocate responsibility between parties for the activities you’re engaging in that are regulated by the TCPA among other things. And then you also you want to make sure you’re vetting the people that you’re working with because a lot of the claims that we see happen because of a weak link in the chain and you could have the best compliance program of all.

Compliance programs as a caller. But if the source of your leads is not in a good way when it comes to collecting those leads, or if you hire a vendor to make phone calls and they’re not TCPA compliant, you are already up in a big way in big trouble with that you could walk right into a claim. And unfortunately, a lot of those end up becoming kind of the cases that go somewhere. So it is definitely you you can’t ignore your third parties. You’ve got to pay attention to that. So I think I gave you five. I actually have a list of 10, which if anyone emails me after, I’m happy to send you our our little cheat sheet on this, but that is there. There are lots of things you can do. So TCPA is dangerous, but it’s also something that you can prepare for. You can make sure you avoid the major traps.

Jordan Eisner  

Yeah, well put, well put. I’m impressed. All that off just top of your head like that. And I’m just gonna reiterate just what Alex just said. If somebody emails her after this, she’s got a little cheat sheet of 10. That sounds very valuable. So, yeah, thanks for adding that. All right, let’s move on, cuz you covered that really, really well. I think that was very meaningful.

Information for anybody listening or watching this.

What do you do if you’re sued or you get a demand letter or you’re threatened?

Alexandra Krasovec

It’s a great question. I think #1 is don’t go it alone. Whether you want to be the face of the response or not, you still should involve TCPA council. I’ve seen many times people respond in an improper way or a way that ends up becoming basically a binding admission that harms their case, changes the trajectory of the resolution. And so number one, I think is like take a beat, don’t respond right away. It’s a strategic decision whether you acknowledge the claim, whether you investigate and give them any information whether you, you know, actually have your counsel take it so that everything you do from the second you get a claim is potentially consequential. So that’s the number one thing to keep in mind. Other top things to do one review the claim and understand the nature.

Of the allegations or what they’re saying that you did that violated the TCPA. You want to get your arms around what is it that the claim is asserting. If they give you the phone number, you want to do not call. You want to internal DNC that number. If you don’t have the number, you’re going to need to get it. Again, a strategic call on who makes the.

The outreach for that and how you do it. So don’t just willy-nilly follow up with opposing counsel or the claimant. Make sure you work that out with your attorney. Conduct an investigation. How you do it, you should do it with counsel. They can help you guide that investigation, but for those.

Jordan Eisner 

 Hmm.
Yeah.

Alexandra Krasovec

Those people who already kind of handle claims like this, they know like typically you’re looking at account records, you’re looking at call records, you’re looking at, you know, whether or not you actually did the activity. If you have policies that apply, you’re going to want to be gathering those. You want to figure out who is involved in the claim. If anybody, if you have a vendor involved, there’s.

Another piece to that, right? You’re going to need your vendor agreements. And when you’re reaching out to third parties who are not the direct recipient of the claim, remember those communications are potentially discoverable. So there’s a very careful way to handle that. So again.

Consult your attorney. And then the last thing I I think if I had to give just like 5 is that you implement a litigation hold. I mean everything from a preclaim demand to an actual case is potentially litigation. Don’t lose your data, don’t lose your records. They could actually be very useful to you.

You things that run out really quickly that I just want to mention. If your text records are on some sort of burning data destruction plan, you want to stop that. The other thing is your consent records. If you’re getting Dronaya or active prospect records, you.

Do not want those to go away. A lot of those have a very short document retention timeframe, you know, 90 days or so. Download those certificates. Make sure your vendors downloaded those certificates. I typically have clients who address this upfront, address it in their contract.

So that it’s already dealt with and you know like those are not being destroyed, they’ve already been downloaded and capped. But if you don’t know that that’s for sure the case, that is one of the other very important things that could go away. So definitely implement those litigation holds early.

Jordan Eisner

Yeah, I know with Active Prospect, I think you’re right about the short time span that that they keep it. But then I think it goes into what they call cold storage and even that I do think they can access within 48 hours or something as their policy, but.

Yeah, I mean, to your point, time is money in all these instances and being able to know exactly when, where, how, what it happened, what’s claimed, what the allegations are is very vital. So keeping record of that information is important. And the other thing I was going to add earlier, I’m not sure about Dronaya.
I’m a little closer with with a contact over at Active Prospect and a little bit more familiar with their tool, but you were talking about.

You know the lead ID and capturing consent. I know that with Active Prospect you can then build the the the buyers of those leads can build in rules that kick back certain leads that don’t follow their disclosure or their consent language requirements too. So it’s an added step like you said. It’s a step in the right direction and just keep record of it. A good second step, I think for for a lot of organizations is then to dictate the rules for what is kept and what’s not kept and what you kick back and from a lead standpoint to even protect it more. But that’s I guess a little bit off topic from from what to do when you get to it. So yeah, very, very good.

Information this is this is very valuable everything you’re bringing. So I think we got just a few minutes left and then I got to let you get on with the rest of your day and help you help or you help save a bunch of clients as I’m sure you’re going to in their current situations but.

In closing, what what are your thoughts on the SCOTUS ruling on the TCPA recently and what sort of impact the McLaughlin case is going to have on TCPA moving forward?

Alexandra Krasovec

McLaughlin is an interesting development. I think for those of us who had watched Loper and, you know, wondered what was going to become of the FCC’s rulings under the TCPA, you know, kind of the background here is the Hobbs Act.

Was previously construed as requiring courts to follow FCC rulings unless they were challenged within a specified period of time, 60 days in a district, I mean in a Circuit Court of Appeal. What McLaughlin says is those those rulings aren’t binding. The the fact pattern that was going on in McLaughlin is there was a TCPA fax case. The question was whether or not E faxes that are delivered by e-mail rather than on like a printed paper version of a fax machine are covered.

By the TCPA, the FCC had a ruling in Mirafactors that said they’re not. Then the court in McLaughlin was bound to follow that per Hobbs. Well, what got appealed and the issue the Supreme Court was dealing with was whether or not the District Court actually.

Had to follow that ruling, or whether it needed to conduct its own analysis. And the Supreme Court said no, the District Court has to conduct its own analysis based upon statutory interpretation. It can look at what the FCC did, but it’s not bound to follow it.

And the other thing that’s interesting is that the court kind of skirted around Hobbs and said like, yeah, Hobbs allows you to challenge a ruling issued by the FCC within a minimal period of time if you are not facing an enforcement action, right? It’s like a pre-enforcement challenge, right? This could be an issue. And so that’s what the implication of that decision is. Now, McLaughlin was dealing with an interpretive ruling of what does this word mean in the TCPA. But there are also rulings that the FCC will issue that are like rulemakings.

The Supreme Court included a footnote in the O’Laughlin decision that suggested you could also bring APA challenges to those rulemakings. Basically, FCC rulings that are issued can be challenged as, you know, arbitrary and capricious, for example. And So what I think we’re going to be seeing here is.

A lot of previously accepted rules under the TCPA are going to be challenged in district courts across the US And you know, when you’re wondering what could be challenged, I mean some really low hanging fruit things are.

Is a text to call or you know what consent is really needed? Because the TCPA says consent or express consent doesn’t say prior express written consent. For example, that’s an FCC construct. So I think we’re going to see an opening for challenges like that. TCPA law is going to get very interesting very fast.

Jordan Eisner

Wow. Even more interesting than it already is, huh? For someone like you.

Alexandra Krasovec

Yeah, right. I think that maybe those of us who enjoy this as like a a a mental exercise feel that this is really an exciting development in that way. But from a compliance perspective, it is going to make things difficult for a while. I think it’s going to be similar to what we saw with face.

Facebook where, you know, there was a clear statement by the Supreme Court about what an ATDS was, but there that still needed to be applied. And so we saw kind of a break across different courts about what that really meant. Here it’s going to be happening, you know, on the ground up.

Challenges are going to be happening in lower courts and they’re going to percolate to circuit courts and maybe even to the Supreme Court. So it is going to be somewhat difficult to plan around the unknowns, but for for certain, at least right now, I I don’t view McLaughlin as you know opening the door to just disregarding everything that’s out there, I definitely don’t consider that to be a smart move. So I would say for anyone who’s curious, you know you can look at what issues maybe you’re concerned about and see if maybe McLaughlin might open the door to change the way the law applies, and that’s, I think, the way to look at it.

Jordan Eisner 

Well put. Again, I think what’s been the most impressive in this whole podcast is you must have a really good chair because I don’t think you’ve moved left or right this entire time. My back, I’m just feeling it from sitting here this long, and I’m like Alex hasn’t moved once.

Alexandra Krasovec

I am not in a rolling office chair, so I think that is helpful.

Jordan Eisner

There you go. Well, well, really appreciate your time, your experience and wisdom. I think that you’ve brought on this podcast today. I think it’s going to be very good for anybody who listens and watches. What’s the best way to get in contact with you? You mentioned earlier, hey, e-mail me, you know, if you want 10 fact sheets or if you want some advice outside of this, do you want to say your e-mail here? Do you want to point people to the Manat website? I’m sure it’s there and they can Google your name and find it pretty easily.

Alexandra Krasovec

It’s both. So email is the best way. e-mail address is a KRASOVEC@manatt.com. So akrasovek@manatt.com. Our website manatt.com also has a TCPA landing page. So if you go to manatt.com you search TCPA, you’ll get taken to that landing page. I cannot emphasize that the resources that are there enough go there, visit. We’ve got webinars, we’ve got materials, we have articles, and then of course BIOS on everyone who’s part of the team. So those are the two best ways to by me and to get information on the TCPA from an app.

Jordan Eisner 

Yeah. And in closing for our listeners, I would add too from a CompliancePoint standpoint, you know everything from a legal standpoint you are going to be well suited to go with Manat and Alex and other you know I think TCPA specialist firms and absolutely need that to Alex.

This point in the event of demand letters and allegations and going to trial where compliance one comes in and where we partner with companies like Nat and Alex is really operationalizing some of this you know and working I’d say hand in hand from a legal and an operations ground floor type tactical.

Standpoint on how to comply with some of these because as Alex has so well pointed out, it’s complex and it’s complicated and and it’s just not simple. A lot of organizations don’t even realize they’re telemarketing or they’re, you know, refuse to accept that. And I think acceptance is step one, right?

And then and then you start navigating some of the rules, federal and state rules. So while we’ve got some some items out there maybe to do this again in the future. Alex, once again, thank you for your time, and we’ll wrap there and I hope everybody is well.