Our readers may recall a piece in which we discussed a surge in Telephone Consumer Protection Act (“TCPA”) lawsuits filed by The Law Offices of Jibrael Hindi (“Hindi”). Hindi’s TCPA focus seemingly has shifted from the TCPA regulation discussing the times during which companies should typically call and text consumers, and has turned its attention to two separate provisions of the TCPA. Below, we discuss: (1) the types of TCPA cases Hindi now is filing; and (2) what your company should do if it becomes the target of a Hindi TCPA lawsuit.
Variety Is The Spice of Life – Hindi TCPA Lawsuits Come In Different Shapes
Although Hindi continues to file TCPA quiet hours lawsuits, it has shifted its emphasis to an area that invokes a different TCPA-implementing regulation – failure to honor consumer opt-out requests. Codified at 47 C.F.R. § 64.1200(d), this TCPA regulation requires companies that deliver telemarketing calls/texts to institute procedures for maintaining a list of persons who request not to receive telemarketing calls/texts. The allegations in these Hindi TCPA lawsuits follow the same basic playbook – namely, consumers who previously provided consent to the receipt of telemarketing calls/texts that subsequently revoked that consent then file lawsuits alleging that they received calls/texts following their opt-out. These lawsuits further allege that the failure to honor opt-out requests demonstrates that companies: (1) lack procedures for maintaining a list of consumers who requested not to receive calls/texts; (2) fail to train their employees who are engaged in telemarketing; and (3) fail to maintain internal do-not-call lists.
The other flavor of TCPA lawsuits that Hindi is filing of late relates to the TCPA’s provisions prohibiting non-emergency prerecorded calls to consumers’ cell phones without their prior express written consent. Unlike the regulation discussed above, another provision of the TCPA and its implementing regulations prohibits all non-emergency calls using a prerecorded message made to consumers without prior express written consent. In other words, these TCPA proscriptions are not limited to telemarketing calls/texts and apply to informational calls of a non-commercial nature.
What Should Companies Do If They Are Named in a Hindi TCPA Lawsuit?
The TCPA and its implementing regulations provide companies with an affirmative defense for the failure to honor opt-out requests. Specifically, one for companies that implement certain procedures including, among other things, the existence of a written policy for maintaining do-not-call lists and the provision of training to personnel on using the company’s do-not-call list. While it is prudent for companies who engage in telemarketing to maintain policies and procedures for honoring opt-out requests, implementing reasonable procedures does not provide companies with a “get out of jail free card” for continuing to deliver calls/texts to consumers after they’ve opted out. Moreover, it’s important to note that companies bear the burden of establishing that their policies and procedures are reasonable under the TCPA.
Readers of this blog know that the TCPA can be a lucrative statute that Hindi and other members of the plaintiffs’ bar mine for new paths to pursue litigation. The TCPA, along with its implementing regulations, is a vast regulatory framework that can be costly if companies do not carefully comply with its nuanced requirements. As such, it is imperative to regularly update telemarketing practices and procedures and to have them examined by experienced counsel.
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