TCPA Class Actions: Pursuing or Defending Claims Over Phone, Text - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A TCPA Class Actions: Pursuing or Defending Claims Over Phone, Text and Fax Solicitations Leveraging the Latest Developments in Federal Jurisdiction, Statutory Damages Limitations, Superiority, Consent and More WEDNESDAY, APRIL 12, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Paul G. Karlsgodt, Partner, Baker Hostetler , Denver Keith J. Keogh, Founder, Keogh Law , Chicago John G. Watts, Founder, Watts & Herring , Birmingham, Ala. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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OVERVIEW OF THE TCPA Why do we have the TCPA and what are some decisions lawyers have to make in their cases in 2017? Strafford Webinar April 12, 2017 John G. Watts 205-879-2447 www.AlabamaConsumer.com

A (fax) blast from the past.... • In 1991 fax machines would run out of paper in the morning.... • Fax "blasts" were a marketer's dream to quickly and cheaply communicate to prospects 6

Dinner calls.... • "Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.“ Senator Hollings, quoted in Mims v. Arrow , 132 S.Ct. at 752. 7

So what does the TCPA prohibit? • For our purposes, computerized calls/texts and faxes made without permission from the recipient of the calls and faxes 8

In the past, what were the common cases? • Cases in the 90s and early 2000s predominantly were fax cases -- "junk fax" cases. 9

Cell phones are biggest source of TCPA cases • Everyone has one • Often only phone • Calls/texts easiest way to directly consumers 10

What are the possible damages? • The key focus is on statutory damages (think of implication for class actions). • Typically $500 per violation • No class action limit as in the FDCPA, etc. 11

The statutory damages can be $1500 per call.... • For willful or knowing violations • Imagine the numbers 12

Stop violations of the law • From a policy standpoint, the bounty encourages citizens to sue to stop bad behavior 13

Campbell v. Gomez “Can a defendant force you to win?” • 136 S.Ct. 663 (2016) • TCPA case • Defendant offered to pay more than Plaintiff sued for 14

Campbell v. Gomez No on OOJ, Maybe on Deposit? • Majority said OOJ doesn’t do it • Dissent disagreed • Door left open for if defendant actually tenders/deposi ts the money 15

Unsettled questions • Does actual tender of funds moot case? • Does actual depositing of funds into court moot the case? • What about if a class action motion is filed? • Or not yet filed at time of tender/deposit? 16

File as a class or individual? • Which gets the plaintiff the most money? • At least have to have this conversation with client. • Would you file a 200+ call case as a class? 17

Where to file – State or Federal Court? • Spokeo effect? • Could a pure statutory damages case under TCPA be dismissed? • Is it better to force defendant to choose to leave in state court or remove to federal? 18

Feel free to contact me if any questions.... • John G. Watts • Watts & Herring, LLC • Alabama • 205-879-2447 • www.AlabamaConsumer.com or John@WattsHerring.com 19

TCPA CLASS ACTIONS -Consent -Ascertainability -Vicarious Liability -Spokeo -FCC Change Keith J. Keogh K EOGH L AW , L TD . WWW .K EOGH L AW . COM

CONSENT -TELEMARKETING vs DEBT COLLECTION CALLS • FCC has treated consent differently depending on the content of the call even though the TCPA is content neutral. • 2008 FCC Order governs debt collection consent. Keogh Law, Ltd. • 2012 FCC Order governs telemarketing-requires written consent effective October 2013. • Form of consent is important when applied to class certification issues. 21

TCPA & CLASS CERTIFICATION • “Class certification is normal in litigation under §227 [of the TCPA], because the main questions . . . are common to all recipients.” Ira Holtzman, C.P.A. & Assoc. Ltd. v. Turza , 728 F.3d 682, 684 (7 th Cir. 2013). • At least fifty courts had already certified TPCA class actions as of 2010. Karen S. Little, L.L.C. v. Drury Inns, Inc. , 306 S.W.3d 577, 584 n. 5 (Mo. Ct. App. 2010). Keogh Law, Ltd. • In the past five years, courts have continued to certify TCPA class actions, many of which concern unsolicited text messages. See e.g. Agne v. Papa John's Intern., Inc ., 286 F.R.D. 559 (W.D. Wash. Nov. 9, 2012) (text messages); Lee v. Stonebridge Life Ins. Co. , 289 F.R.D. 292 (N.D. Cal. 2013) (text messages) Stern v. DoCircle, Inc. , 2014 U.S. Dist. LEXIS 17949 (C.D. Cal. 2014) (text messages); Kristensen v. Credit Payment Services , 12 F.Supp.3d 1292 (D. Nev. 2014) (text messages); Birchmeier v. Caribbean Cruise Line, Inc. , 302 F.R.D. 240 (N.D. Ill. 2014); Balbarin v. North Star Capital Acquisition, LLC , 2011 U.S. Dist. LEXIS 686 (N.D. Ill. 2011), Mitchem v. Illinois Collection Service , 2011 U.S. Dist. LEXIS 714 (N.D. Ill. 2011); Chapman v. Wagener , 2014 U.S. Dist. LEXIS 16866 (N.D. Ill. 2014); Abdeljalil v. General Electric Capital Corp. , 2015 U.S. Dist. LEXIS 43288 (S.D. Cal. 2015); Stemple v. QC Holdings, Inc. , 2014 U.S. Dist. LEXIS 125313 (S.D. Cal. 2014); Booth v. Appstack, Inc. , 2015 U.S. Dist. LEXIS 40779 (W.D. Wash. 2015). 22

CONSENT & ASCERTAINABILITY • Many courts that deny certification in a TCPA case do so because they believe that there are individual issues of consent and/or the class is not ascertainable. • Whether consent is an individual issue depends not only on the type Keogh Law, Ltd. of case (Non-Telemarketing/Debt collection vs Telemarketing), but also an examination of Defendant’s call data. • Call Data should be discoverable. • Requires experts and may require third party subpoenas • May also require sub-classes. 23