September 18, 2018

TCPA-consent
TCPA Consent

On September 5, 2018, the United States District Court for Colorado granted a motion permitting All Web Leads, Inc. (“All Web”) to intervene in a Telephone Consumer Protection Act (“TCPA”) class action lawsuit filed by Plaintiff Jennifer Turner (“Turner”) against Defendant Efinancial, LLC (“Efinancial”). In her TCPA case, Turner alleges that Efinancial sent five text message solicitations to her cellular telephone number without obtaining proper TCPA consent. Accordingly, Turner sued for statutory damages under the TCPA on her own behalf and on behalf of others similarly situated.

All Web is an Internet lead generator which controls the website located at www.insurancequotes.com. In seeking to intervene in the action, All Web alleges that Turner visited the aforementioned website, provided written consent to be contacted in compliance with the TCPA, and provided her contact information, which information All Web, in turn, provided to Efinancial.

Why did All Web Seek to Intervene in the TCPA Case?

All Web contended that it sought to intervene in Turner’s TCPA suit in order to protect its interest in its business model. Specifically, All Web contended that it was in the business of selling leads that were, among other things, TCPA compliant, and that it should be afforded the opportunity to defend itself against Turner’s allegation that TCPA consent was not properly obtained for the subject texts sent by Efinancial. Turner contended that she did not allege any wrongdoing on the part of All Web, such that All Web had no direct interest in the suit. The District Court found Turner’s contention to be “nonsensical,” and readily concluded that All Web was a real party in interest that had divergent interests from eFinancial. In particular, despite the fact that eFinancial had an interest in avoiding liability, the Court found that All Web had a separate business interest in establishing the validity of its leads. That interest, the Court found, was direct and legally protectable, separate and apart from eFinancial’s interests, and warranted the intervention of All Web in the suit.

Obtaining TCPA Consent is Paramount

The Turner lawsuit underscores the exposure presented by a lawsuit alleging invalid TCPA consent for all concerned, whether or not the lead generator at issue is named as a party to the subject suit. All Web perceived Turner’s allegations to be a direct challenge to its standard business practices and procedures with respect to ensuring that its leads are TCPA compliant — a core business function — and sought to proactively protect itself. Fundamentally, the importance of obtaining prior express written consent that complies with the TCPA (and the regulations promulgated thereunder) should be paramount to any lead generator.

The TCPA expressly prohibits the placing of any call, including the sending of any text message, using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice, to any telephone number assigned to a cellular telephone service, without the receiving party’s prior express written consent. 47 U.S.C. § 227(b)(1)(A)(iii). Express written consent from a consumer includes clear and conspicuous disclosures informing her/him that she/he is authorizing a seller (or some person or entity on the seller’s behalf) to contact her/him using an ATDS or an artificial or prerecorded voice. In the consent obtained, that seller should be identified by its full corporate name (or its registered “D/B/A”).

We have previously blogged on the myriad issues presented in TCPA cases. No issue is more important than obtaining valid TCPA consent, which provides an absolute defense to most TCPA claims. It is critically important to retain experienced regulatory counsel to review practices and procedures to ensure TCPA compliance.

If you are interested in learning more about this topic or are a party to a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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