Obtaining prior express written consent is the fundamental requirement for any telemarketer that wants to avoid violating the Telephone Consumer Protection Act ("TCPA"). In most instances, TCPA consent is a general prerequisite for contacting consumers with advertisements either by placing calls or by sending text messages using automated means. Valid consent is comprised of several elements and can be a fact-intensive matter to evaluate. In a recent case captioned Burk v. Direct Energy, the court denied class certification based on the need to have mini trials on whether each respective consumer had provided TCPA consent.
How does the Burk decision affect TCPA consent defenses?
Brittany Burk allegedly received several unwanted calls and text messages from Direct Energy. She filed a TCPA class action lawsuit against the company for sending unsolicited advertisements without prior express written consent. When the case moved on to the class certification stage of the proceedings, Burk argued that the class contained over 142,000 names of individuals who received calls or text messages from Direct Energy but were not Direct Energy customers. Direct Energy countered that Burk, among other potential class members, provided prior express written consent on a particular landing page prior to Direct Energy's contacting her/him.
Each side presented evidence and expert witness testimony about how to determine who was a member of the class and whether that member provided consent for Direct Energy to contact her/him. Complicating matters further, Direct Energy hired a third party to generate leads on its behalf, and that third party allegedly kept poor records of which leads were or were not TCPA compliant. Burk argued that the Court could make reasonable inferences about the lack of consent in order to certify the class. Direct Energy disagreed, citing Burk's failure to demonstrate that the consent issue could be determined using the same evidence for every class member (i.e., class-wide proof).
After evaluating the competing arguments and expert witness testimony, the Court denied the motion for class certification. In doing so, the Court focused on the problem of individualized questions surrounding TCPA consent. It seems that Direct Energy's third-party lead generator obtained leads from three different companies across nine different landing pages (i.e., the TCPA consent page). Taking just six potential class members, including Burk, the Court found that each consumer required his or her own mini trial to evaluate, among other things: the landing page on the day the party provided consent, the consent specifics (e.g., the consumer's name, phone number, IP address, and email address), and expert witness testimony about why the consumer provided valid consent or not.
As you may know, the purpose of a class action is to efficiently resolve factual and legal questions on a class-wide basis. The Court found that Burk could not meet her burden of showing that issues surrounding consent could be resolved on a class-wide basis; rather resolution required individual mini trials for each consumer. As a result, the Court ruled that individualized facts defeated any class-wide resolution on TCPA consent.
Why does the Burk decision matter to your business?
By now, everyone in the telemarketing industry should know that having prior express written consent from consumers that you plan to contact is paramount. Of course, many businesses rely on lead generators or other third parties to cultivate contact lists for their marketing campaigns. In evaluating where you stand from a compliance perspective, key TCPA questions to ask include: What does the TCPA consent landing page look like (i.e., is the TCPA consent language prominent and above the "I Agree" or "Submit" button)? Does the TCPA consent language meet all of the statutory requirements to be valid? If your business is generating its own leads, how robust is your TCPA consent language?
TCPA consent issues often require a case-by-case, fact-specific analysis that may help cut off class certification. However, the fact that consent requires an individualized analysis does not keep you out of court. Individual claims can also be quite costly, particularly as a business sees more and more of them.
Every telemarketer's goal should be to stay out of court in the first place. Vigilance in TCPA compliance is the only surefire way to achieve that ultimate end.
Hire experienced TCPA attorneys.
Am I running a risk if my TCPA consent language is below the "Submit" button on my website? What if the consent disclosure is in a lighter font than the rest of the page? How do I know that I am buying TCPA-compliant leads? These are only a few of the nuanced questions that telemarketers need to address in evaluating their own TCPA compliance. Hiring experienced telemarketing attorneys can provide not only answers to these questions, but also answers to questions that you may not even have known to ask.
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The Telemarketer's Guide: Consumer Disclosures
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
