Have You Been Sued by Todd Bank?

This post originally appeared on the blog of Klein Moynihan and is re-published here with permission. The article was co-authored by David O. Klein and Joshua Wueller.

David O. Klein

The Federal Communications Commission (the “FCC” or “Commission”) is currently seeking comment on whether it should establish a bright-line rule for telephone lines in residential homes that are used for business purposes.  The petition prompting the FCC’s request was filed by Todd C. Bank – a lawyer and established class action plaintiff who is making a name for himself throughout the telemarketing industry by virtue of his liberal use of the Telephone Consumer Protection Act (“TCPA”) to bring class action lawsuits.

In the past two years alone, Mr. Bank has filed a dozen such TCPA class action lawsuits in New York State against a variety of sellers and telemarketers.

What should you do if you have been sued by Todd Bank?

Todd Bank’s Petition and the FCC’s Request for Comment

On March 31, 2016, the Commission issued a Public Notice seeking comment on Mr. Bank’s Petition.  The Petition requests that the FCC define a residential telephone line as any phone line that is provided as “residential” service by the telephone service provider, regardless of whether the phone number is listed publicly as a business number or otherwise used as such.

If granted as requested, Todd Bank’s Petition could greatly diminish the practical scope of the TCPA’s well-established business-to-business exemption, which expressly allows telemarketers to make certain telemarketing calls to businesses.  Limiting the business-to-business exemption would undoubtedly be of great benefit to Mr. Bank and other TCPA plaintiffs.

How to Avoid a TCPA Lawsuit

There are clear best practices that can be implemented to minimize the risk of becoming involved in a TCPA lawsuit.  In the telemarketing industry, perhaps more than any other, a penny of prevention truly is worth more than a pound of cure.

Sellers should confirm that their telemarketing partners are taking proper steps to maintain compliance with the TCPA and its implementing regulations.  Likewise, telemarketers should ensure that they have proper protocols in place to both ensure their own compliance, as well as to ensure that their affiliates are compliant with the TCPA.  Above all, it is critical to work with experienced telemarketing counsel before the launch of any campaign in order to implement the practices and procedures necessary to prevent making telephone calls or delivering text messages that violate the TCPA.

What should you do if Todd Bank or any other TCPA plaintiff sues you?

The failure to quickly identify the defenses available to TCPA class action lawsuits may result in sellers and telemarketers alike finding themselves on weak footing when defending the claims brought against them.  Therefore, it is critical to engage counsel knowledgeable in the intricacies of these complex issues in order to minimize the expense of defending such suits, whether brought by a formidable litigator such as Mr. Bank, or other TCPA plaintiffs.

The key to successfully and promptly disposing of a TCPA suit is retaining counsel that understands the nuances of the TCPA and related telemarketing regulations and case law. Over two decades of extensive experience with the aggressive defense of telemarketing lawsuits has allowed us to formulate arguments informed by the most effective legal theories related to TCPA claims, positioning our clients to achieve favorable resolutions.

If you are interested in this topic, have been sued or contacted by Todd Bank, or are otherwise the subject of 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.