TCPA Litigation Trends: From Consent to Compliance Protocols

Tom Woods
Partner, Litigation

Abstract

Tom Woods, Partner in the Litigation and Trial Practice Group at Stoel Rives, outlines how enforcement and litigation under the Telephone Consumer Protection Act (TCPA) are evolving. While earlier cases centered on whether a company had express written consent to contact consumers, Woods notes a shift toward examining whether businesses respect revocation of consent and follow required compliance protocols—such as monitoring federal and state “Do Not Call” lists.

This change has led clients to seek more proactive, preventive legal support. Based in Sacramento but practicing across California, Woods explains how Stoel Rives now helps clients design and document policies that not only meet TCPA requirements but also address related legal risks, from privacy notices to web accessibility. As consumer protection litigation becomes more process-focused, firms are increasingly called upon to provide compliance counseling before disputes arise.

Transcript

My name is Tom Woods. I started at Stoel Rives in 2011. I am a member of the Litigation and Trial Practice Group here at the firm. I am based here in Sacramento, but my practice is all throughout California. I have been a general commercial litigator for some time. While I handle a lot of different types of cases involving fraud between individuals and businesses and breach of contract, cases filed anywhere, my specialty is probably defending firm clients, my clients, in consumer class actions—mostly in consumer defense as to consumer claims—mostly with respect to the Telephone Consumer Protection Act, the TCPA.

The TCPA is a federal statute. It has been around since the 1990s, and it is the law that prevents retailers, telemarketers, other companies from calling consumers and potential consumers for telemarketing purposes without the consumer's express written consent. That has always been the focus and the simplest statement of the law, but it has begun to change over the years. We are not only keeping an eye on those trends that are changing, it is also changing the client service that we give to the clients of the firm. The example is, the question always used to be, is the company going to face the draconian penalties under the statute for contacting the customer without their express written consent? Did you have their consent or not? If you did not, there can be heavy penalties. The case law and the trends on that have changed a little bit to where now the issue is a little bit less whether you had consent and whether the company absorbed or respected the customer's revocation of their consent.

The National Do Not Call Registry that you have heard of a customer can put their name on that and that is their revocation of consent. Companies actually have to be monitoring that if they do telemarketing to different area codes throughout the country. Then, different states California, Colorado, individual states have developed their own do not call rules that companies need to comply with. With technology, it is a lot easier to get onto these lists, and there are rules where companies need to comply. The cases have now become less oriented around was there consent, and more oriented around was there consent, but did the company follow the processes? Did they implement and follow the policies that are required by the laws for compliance under the TCPA and these mini-TCPAs in all the different states? What that has done is caused our clients who now have more access to cases filed against competitors and co-businesses in their industry, quicker, easier access from the trade associations they belong to, they can see an uptick in these cases, and they want to know what they are all about. At Stoel, we monitor those and we find the litigation assistance that we have been offering to these clients has actually become preventative litigation assistance where we can help the clients along in understanding the policies, the procedures, the memorialization and the following of those policies and procedures to make sure that in the event that one of these lawsuits comes, they can adequately defend themselves and they can reduce the possibility of extensive exposure under these pretty draconian statutes.

That has been a change to our practice over time. It often turns out that in looking at the company's policies, practices, and interactions with the consumers, they might need help with other things. There could be privacy notifications on their website that they need assistance with. It could be that there is a web accessibility issue where sight impaired people cannot easily access the information on the website, which could develop into a claim under the Americans with Disabilities Act. The preventative help might be different, but it is just as much an important part of what we do for our clients.