A record settlement for up to $76 million reached between approximately one million individuals and Caribbean Cruise Lines, Inc., two of its marketing subsidiaries, and a third-party entity that was announced on September 8 will be the biggest settlement in the history of the Telephone Consumer Protection Act (TCPA.)
The Key Takeaways
1. This is substantial in that it is the largest TCPA settlement to date. But, it’s also significant because it signifies that not only is the TCPA not going away, it is actually getting worse. Additionally, it is extending across more and more industries. It’s not just banking and retail being hit with lawsuits; any business that has direct, outbound communication with consumers should be auditing and shoring up their TCPA strategy.
2. Two marketing subsidiaries and a third party entity were named in the suit, along with Caribbean Cruise Lines. This is a referenceable example of a common misconception of the TCPA rearing its ugly head. Simply, if you are making calls to consumers, or another party is calling on your behalf, you are responsible for ensuring that you have permission to call that consumer.
Anyone in the daisy chain of obtaining a consumer’s interest and dialing that consumer to market to them is responsible for obtaining and verifying that they have permission to do so. Otherwise, a $76m dollar class action suit can result.
3. Companies relying on the Spokeo case to help their defense need a better strategy. Caribbean attempted to use the recent Spokeo, Inc. vs. Robins case as precedent for dismissing its suit, claiming that these robocalls were nothing more than a naked violation of the TCPA, without a concrete harm to the plaintiff.
Assumptions about the Spokeo Case
Companies assumed that the outcome of the Spokeo case would act as precedent, and it would now be on the plaintiff to prove concrete harm. On the face of it, it seemed very difficult to furnish proof of concrete harm as result of a telemarketing call. After all, this seems like a reasonable assumption, that a telemarketing call is just a reasonable inconvenience, and not concrete harm.
Reality of the Spokeo Case
What we're finding, however, is that judges are rejecting the Spokeo case as precedent, citing that concrete harm is done in the form of violating consumer privacy. The definition of concrete harm is open to wide interpretation. If an invasion of privacy has occurred, judges are considering that to be enough concrete harm to maintain the case and even to go to class action.
Not only are judges interpreting telemarketing calls to be concrete harm, but some other examples of judges interpreting concrete harm, which may seem ludicrous, include text charges, cell phone minute charges, and cost of electricity. While these may seem ridiculous, they have been referenced in previous cases. Here are several examples of such TCPA standing cases post-Spokeo:
- Must allege specific facts as to injury: Sartin v. EKF Diagnostics, Inc. (E.D. La.)
- Depleted minutes on prepaid or limited-minute phones, electricity used to charge
depleted battery are concrete injuries: Mey v. Got Warranty, Inc. (N.D. W. Va.);
Mey v. Patriot Payment Group, Inc. (N.D. W. Va.)
- Alleged phone line unavailability during the unwanted calls is a concrete injury:
Rogers v. Capital One Bank (USA), N.A. (N.D. Ga.)
- Alleged time spent answering or attending to unwanted calls is a concrete injury:
Booth v. Appstack, Inc. (W.D. Wash.)
- Alleged invasion of privacy is a concrete injury: Caudill v. Wells Fargo Home
Mortgage, Inc. (E.D. Ky.)
Hanging your hat on Spokeo is not a strategy. It’s being proven to be a moot point for defense. Judges and litigation attorneys are interpreting on both sides of Spokeo. How much money, resources, and time do you want to pour into your defense strategy on the precedent of the Spokeo case?
Many companies have spent hundreds of thousands of dollars just in legal fees just to respond to a TCPA claim, without even getting to the class action suit point. And, it can take months or years just to get there.
The Caribbean Cruise Lines suit will be interesting historically when we look back. And, from a business perspective, anyone responsible for compliance strategy needs to look closely at what this settlement means for the state of this act and understand the risk associated with their own strategy.
If you decide that this risk is higher than you are comfortable with, there are solutions that enable you to avoid making calls to people you have deemed non-compliant and enable you to persuasively prove you are compliant if you are ever required to do so.