Everyone has been on the receiving end of a “robocall” – an automated phone message trying to sell you something, promote a product, or get you to vote for a political candidate. Believe it or not, robocalls have been around since the 1990s. In fact, major legislation to curb invasive robocalls was passed in 1991.
The Telephone Consumer Protection Act (TCPA) was passed to regulate telemarketing calls and auto-dialed calls. It was later interpreted to include text messages as well. Among other requirements, the law sets certain rules and restrictions to protect consumers from unwanted communications and prohibits telemarketers from contacting individuals who have not given their prior express consent.
TCPA Claims
To win a TCPA lawsuit, the plaintiff typically needs to prove the following elements:
- Unwanted Communication: The plaintiff must demonstrate that they received an unsolicited call, text message, or fax without their prior express consent. The TCPA prohibits such communications to individuals who have not given consent.
- TCPA Violation: The plaintiff must establish that the defendant violated one or more provisions of the TCPA. Common violations include making robocalls or using an autodialer to contact consumers without consent, sending unsolicited text messages, or using artificial or prerecorded voices without consent.
- Harm or Damages: The plaintiff must show that they suffered some form of harm or damages as a result of the TCPA violation. This can include invasion of privacy, nuisance, monetary loss, or other tangible or intangible harm.
If the lawsuit is filed as a class action, the plaintiff must demonstrate that the case meets the requirements for class certification, such as numerosity (a large number of potential class members), commonality (common legal issues among the class members), typicality (plaintiff’s claims are typical of the class), and adequacy of representation (the plaintiff can fairly and adequately represent the interests of the class).
The industry lends itself to class actions since many consumers are similarly affected by the same unlawful practices. Plaintiffs in TCPA class action lawsuits may be entitled to damages ranging from a few hundred dollars up to thousands of dollars per violation, depending on the specific circumstances of the case.
The Rise of TCPA Class Actions
While the TCPA changed the landscape for the robocall industry, it did not stop the behavior completely. The law allows consumers to file lawsuits against individuals or entities that violate the law’s provisions. With robocalls persisting, and consumers becoming more aware of their rights, consumers began bringing actions against those making unwanted calls. In 2015, the FCC declared officially that text messages are also subject to TCPA requirements, further increasing violations and subsequent litigation.
Recent Class Action Lawsuits
With the rise of text message marketing, major corporations across just about every sector have opened themselves up to TCPA litigation.
In April 2023, plaintiffs filed a class action lawsuit against L’Oreal USA Inc. for allegedly continuing to text message users after they had opted out.
In January 2023, Keller Williams Realty agreed to a $40M TCPA settlement.
In April 2023, Discover agreed to a $1M class action lawsuit settlement for alleged unsolicited calls.
In May 2023, Build-A-Bear Workshop settled a $4.1M class action lawsuit for unsolicited text messages.
Other companies who have been involved in TCPA class action lawsuits include: Facebook, American Express, iHeartMedia, Geico, State Farm Insurance, Margaritaville Enterprises, Gerber Life Insurance.
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