By Andrew W. McLaughlin
Recently there has been an increase in claims under the Telephone Consumer Protection Act (“TCPA”). The TCPA places restrictions on when an organization can make calls to individuals using an autodialer. With limited exceptions, the statute prohibits organizations from making any “call” to a consumer’s landline soliciting an individual or any call to a mobile phone unless the organization has the “prior express consent” of the consumer. The definition of “call” includes text messages and other applications that allow or facilitate contact with consumers. Under the TCPA, an individual may revoke consent for the calls by any reasonable method- the organization cannot require the individual to use a specific method to revoke consent. Note that the TCPA is a strict liability statute. An organization is liable for statutory damages of $500-$1,500 per improper call even if the organization reasonably believed it had consent of the individual to make the calls. Further, an organization may be liable for impermissible calls by a third party on behalf of the organization.
Several large class actions have involved appointment reminders, prescription refill reminders, and other medical related calls. There are two types of claims: claims alleging the consumer did not consent to the communication and claims alleging the consumer revoked consent for the calls. The lack of consent claims are often the costliest as they are well suited for class action. For example, Walgreens recently settled a nationwide class action related to prescription refill reminder calls for over $11 million. See Kolinek v. Walgreen Co., No. 13-cv-04806 (N.D. Ill. 2013). In Walgreens, the plaintiffs argued that Walgreens customers had not provided consent to the prescription refill reminder calls.
In another case, a company was sued after it made calls to a number which no longer belonged to the person who gave consent to be called. In this case, the new owner of the phone number had not consented to receive calls from the company and accordingly was able to sue the company for damages for the calls the company which were intended for the prior owner of the phone number. Another common fact pattern involves the revocation of consent. In these cases, the plaintiffs claim that they revoked consent by mailing a letter revoking consent to the main address of the organization or by telling someone at the organization that they were revoking consent. The revocation is not forwarded to the proper department and the individual continues to receive calls. These cases are difficult to dispute as they are a “he said she said” situation which requires a jury trial to resolve.
It is important that any organization that makes autodialed calls to individuals (or contracts with vendors who make autodialed calls) have systems and procedures in place to ensure that the organization has consent to make autodialed calls and that if an individual revokes consent for the calls, the proper departments are alerted. Further, organizations should have policies and training regarding these procedures. We are available to review your TCPA language on forms to help minimize the risks. The above is only a summary of some of the options that may be available to employers and is not intended to be legal advice. If you have specific questions or would like legal advice, please feel free to contact Janet McEnery at firstname.lastname@example.org (direct line 813-273-4307), Andrew McLaughlin at email@example.com (direct line 813-273-4208), or Ashleigh Shelver at firstname.lastname@example.org (direct line 813-273-4363).