New Telephone Consumer Protection Act: Boon or Bane to Your Company?

Speaker Firms and Organization:
Vinson & Elkins LLP
Jason A. Levine
Partner
Perkins Coie LLP
Debra R. Bernard
Partner
Troutman Sanders LLP
Chad R. Fuller
Partner
Hall, Render, Killian, Heath & Lyman, P.C.
Lea H. Lockhart
Attorney
Hall, Render, Killian, Heath & Lyman, P.C.
Joshua P. Reading
Attorney
Thank you for logging into today’s event. Please note we are in standby
mode. All Microphones will be muted until the event starts. We will be
back with speaker instructions @ 11:55am. Any Questions? Please email:
Info@knowledgecongress.org
Group Registration Policy
Please note ALL participants must be registered or they will not be able to access the
event.
If you have more than one person from your company attending, you must fill out the
group registration form.
We reserve the right to disconnect any unauthorized users from this event and to
deny violators admission to future events.
To obtain a group registration please send a note to info@knowledgecongress.org or
call 646.202.9344.
Presented By:
March 12, 2014
1
Partner Firms:

March 12, 2014
2
 If you experience any technical difficulties during today’s WebEx session, please contact our Technical Support @ 866-779-3239.
 You may ask a question at anytime throughout the presentation today via the chat window on the lower right hand side of your
screen. Questions will be aggregated and addressed during the Q&A segment.
 Please note, this call is being recorded for playback purposes.
 If anyone was unable to log in to the online webcast and needs to download a copy of the PowerPoint presentation for today’s
event, please send an email to: info@knowledgecongress.org. If you’re already logged in to the online webcast, we will post a link
to download the files shortly.
 If you are listening on a laptop, you may need to use headphones as some laptops speakers are not sufficiently amplified enough to
hear the presentations. If you do not have headphones and cannot hear the webcast send an email to
info@knowledgecongress.org
and we will send you the dial in phone number.

March 12, 2014
3
 About an hour or so after the event, you'll be sent a survey via email asking you for your feedback on your experience with this
event
today - it's designed to take less than two minutes to complete, and it helps us to understand how to wisely invest your time in future
events. Your feedback is greatly appreciated. If you are applying for continuing education credit, completions of the surveys are
mandatory as per your state boards and bars. 6 secret words (3 for each credit hour) will be given throughout the presentation. We
will ask you to fill these words into the survey as proof of your attendance. Please stay tuned for the secret word.
 Speakers, I will be giving out the secret words at randomly selected times. I may have to break into your presentation briefly to read
the secret word. Pardon the interruption.

March 12, 2014
4
Welcome to the Knowledge Group Unlimited Subscription Programs. We have Two Options Available for You:
FREE UNLIMITED: This program is free of charge with no further costs or obligations. It includes:
 Unlimited access to over 15,000 pages of course material from all Knowledge Group Webcasts.
 Subscribers to this program can download any slides, white papers, or supplemental material covered during all live webcasts.
 50% discount for purchase of all Live webcasts and downloaded recordings.
PAID UNLIMITED: Our most comprehensive and cost-effective plan, for a one-time fee:
 Access to all LIVE Webcasts (Normally $199 to $349 for each event without a subscription). Including: Bring-a-Friend – Invite a client
or associate outside your firm to attend for FREE. Sign up for as many webcasts as you wish.
 Access to all of Recorded/Archived Events & Course Material includes 1,500+ hours of audio material (Normally $299 for each event
without a subscription).
 Free CLE/CPE/CE Processing (Normally $49 Per Course without a subscription).
 Access to over 15,000 pages of course material from Knowledge Group Webcasts.
 Ability to invite a guest of your choice to attend any live webcast Free of charge (Exclusive benefit only available for PAID UNLIMITED
subscribers).
 6 Month Subscription is $299 with No Additional Fees Other options are available.
 Special Offer: Sign up today and add 2 of your colleagues to your plan for free Check the “Triple Play” box on the sign-up sheet
contained in the link below.
https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_157964

March 12, 2014
5
Knowledge Group UNLIMITED PAID Subscription Programs Pricing:
Individual Subscription Fees: (2 Options)
Semi-Annual: $299 one-time fee for a 6 month subscription with unlimited access to all webcasts, recordings, and materials.
Annual: $499 one-time fee for a 12 month unlimited subscription with unlimited access to all webcasts, recordings, and materials.
Group plans are available. See the registration form for details.
Best ways to sign up:
1.Fill out the sign up form attached to the post conference survey email.
2.Sign up online by clicking the link contained in the post conference survey email.
3. Click the link below or the one we just posted in the chat window to the right.
Discounts:
Enroll today and you will be eligible for the “Triple Play” program and 3% off if you pay by credit card. Also we will waive the $49
CLE/CPE processing fee for today’s conference. See the form attached to the post conference survey email for details.
Questions: Send an email to: info@knowledgecongress.org with “Unlimited” in the subject.

Partner Firms:
March 12, 2014
6
With more than 900 lawyers in 19 offices across the United States and Asia,
Perkins Coie is a leading international law firm that represents great
companies across all industries and stages of growth—from start-ups to
FORTUNE 50 companies. Perkins Coie's over 100-year tradition of
partnering with our clients to build great companies has earned our firm the
privilege of representing industry-leading clients such as Amazon.com,
Microsoft, Boeing, Intel, Google, Starbucks and Honeywell, to name just a
few.
For almost a century, Vinson & Elkins lawyers have provided innovative
business solutions for clients whose needs are as diverse as the entities
they represent. In today's challenging environment of global markets, volatile
economies, and complex human and environmental issues, our law firm's
time-tested role as trusted advisor has become even more critical. The depth
and breadth of V&E lawyers' experience, combined with the responsiveness
and efficiencies of the firm's global reach, enables Vinson & Elkins to serve
clients from start-up, to the negotiating table and boardroom, before
legislative and regulatory bodies, in the courtroom, and beyond.

Partner Firms:
March 12, 2014
7
Troutman Sanders LLP is an international law firm with more than 600
lawyers and offices located throughout North America and Asia. Founded in
1897, the firm’s lawyers provide counsel and advice in practically every
aspect of civil and commercial law related to the firm’s core practice areas:
Corporate, Energy and Industry Regulation, Finance, Litigation and Real
Estate. Firm clients range from multinational corporations to individual
entrepreneurs, federal and state agencies to foreign governments, and non-
profit organizations to businesses representing virtually every sector and
industry. See troutmansanders.com for more information.
Hall, Render, Killian, Heath & Lyman is a national health law firm with offices
in Indiana, Kentucky, Michigan and Wisconsin. The firm provides
organizations in the highly regulated health care industry with full service
legal representation. With more than 160 attorneys, Hall Render represents
over 500 health care organizations, including hospitals and health systems,
physician practices, life sciences firms and nonprofit organizations. Hall
Render focuses its practice in health law and is recognized as one of the
nation's preeminent health law firms. Learn more at www.hallrender.com.

Brief Speaker Bios:
Jason A. Levine
Jason A. Levine is a litigation partner in the Washington, D.C. office of Vinson & Elkins LLP. A versatile courtroom lawyer for over 15
years, Jason represents clients in their most important business disputes and has tried 10 complex cases to juries and the bench. He
defends against class actions and serves as lead counsel in cases involving contracts, business torts, antitrust claims, and e-
commerce statutes including the Telephone Consumer Protection Act. A noted authority on high-tech litigation risks, Jason has been
recognized as a Washington, D.C.Super Lawyer, as a "Future Star" by Benchmark Litigation, and by Lawdragon magazine as among
the top 3,000 attorneys in the United States. Jason received his J.D. in 1994 from Harvard Law School, and his B.A. in 1991 from
Brandeis University.
March 12, 2014
8
Debra R. Bernard
Debra is a seasoned litigator whose practice encompasses the litigation, arbitration and mediation of all types of intellectual property
claims including Lanham Act actions, trademark infringement, trade dress infringement, misappropriation of trade secrets, copyright
infringement, patent infringement, right of publicity as well as general commercial litigation claims. Debra also has experience in the
litigation and arbitration of Telephone Consumer Protection Act (TCPA) class actions and advises clients on TCPA compliance issues.
Additionally, Debra advises clients on litigation readiness and ediscovery protocols, serves as an active member of the Seventh Circuit
E-Discovery Pilot Program Committee and is an adjunct professor at Chicago-Kent Law School.

Brief Speaker Bios:
Chad R. Fuller
Chad is a partner in the financial services litigation practice of Troutman Sanders LLP, where he focuses on the defense of consumer
class actions and general business litigation.
Chad has substantial experience defending major consumer class action litigation in cases involving alleged false advertising, product
defects, charging for fees and services by a variety of businesses, including computer, software, telecommunications, home warranty,
insurance brokerage, and auto finance companies. He is well versed in California’s Unfair Competition Statutes, including Business &
Professions Code Section 17200. He has tried cases to verdict before courts and private arbitrators and has substantial experience in
mediation.
March 12, 2014
9
Lea H. Lockhart
Lea Lockhart practices in the area of health care law with a focus on health information technology, general business transactions and
services, privacy and security and electronic health records. Prior to joining Hall Render, Lea graduated from Saint Louis University
School of Law and earned a Master of Health Administration from Saint Louis University College for Public Health and Social Justice.
She completed a fellowship at Saint Louis University Hospital and assisted the hospital in researching business and transactional
matters, such as physician arrangements, hospital and physician liability, certification and licensure issues and medical staff matters
and credentialing. Lea was also a lead editor for the Saint Louis University Journal of Health Law & Policy and interned at MetroHealth
Medical Center in Cleveland, Ohio.

Brief Speaker Bios:
Joshua P. Reading
Joshua Reading concentrates his practice on health information technology, business transactions and tax/tax exemption, with a focus
on helping clients in the negotiation and acquisition of a variety of technology and services products. He also assists clients with
matters concerning foundations and support organizations, governance consulting, physician alignment and physician group practices.
Joshua graduated magna cum laude from Indiana University Maurer School of Law and is a member of the Indianapolis Bar
Association, the Indiana State Bar Association and the American Health Lawyers Association.
March 12, 2014
10
► For more information about the speakers, you can visit: http://theknowledgegroup.org/event_name/new-telephone-consumer-protection-act-boon-or-bane-to-your-company-live-webcast/

The Telephone Consumer Protection Act (TCPA) is a major litigation risk for companies, hospitals, and health care
providers who use text messages, artificial or pre-recorded voice messages and other automated dialing technologies to
reach customers and patients. Hundreds of class action lawsuits have been filed in recent years seeking damages that
amount to millions of dollars in TCPA violations, with the largest TCPA settlement to date reaching upwards of $32 million.
New regulations remove key exemptions that previously served as safeguards against TCPA liability. In
response, companies need to revise their practices, andhospitals and health care providers need to revise hospital
admission forms, to avoid liability and potentially catastrophic penalties under the TCPA.
The Federal Communications Commission (FCC) final regulations requiring prior express written consent for autodialed
telemarketing calls to cell phones and pre-recorded telemarketing messages under the TCPA went into effect on October
16, 2013.
March 12, 2014
11

With these latest FCC actions in mind, telecommunication companies, mobile engagement providers, mobile marketers as
well as any company that engages in mobile marketing campaigns face considerable challenges in creating and
implementing effective TCPA compliance guidelines and TCPA compliant marketing programs.
In a two-hour live webcast, the Knowledge Group is assembling a panel of distinguished thought leaders and practitioners
to help companies who engage in mobile marketing and various other types of mobile communications understand new
compliance guidelines to prevent their businesses from falling into the pitfalls of FCC actions and the extremely costly class
action litigation.
Some of the key areas addressed in this webcast:
• TCPA: an Overview of New Regulations
• What Calls Are Affected?
• What Is an Automatic Telephone Dialing System?
• What Is Express Written Consent?
• What If There Is an Existing Business Relationship?
• Are There Any Exceptions?
• What Are the Penalties for Noncompliance?
• New Regulations Already in Effect
• Compliance and Best Practices
• TCPA Litigation Trends and Risks
• Up-to-Minute Regulatory Updates
March 12, 2014
12

Featured Speakers:
March 12, 2014
13
SEGMENT 1:
Debra R. Bernard
Litigation Partner, Co-Chair E-Discovery
Services & Strategy Group
Perkins Coie LLP
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP
SEGMENT 3:
Chad R. Fuller
Partner
SEGMENT 4:
Lea H. Lockhart
Attorney
Hall, Render, Killian, Heath & Lyman,
P.C.
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Introduction
Jason A. Levine is a litigation partner in the Washington, D.C. office of Vinson & Elkins LLP. A versatile courtroom lawyer
for over 15 years, Jason represents clients in their most important business disputes and has tried 10 complex cases to
juries and the bench. He defends against class actions and serves as lead counsel in cases involving contracts, business
torts, antitrust claims, and e-commerce statutes including the Telephone Consumer Protection Act. A noted authority on
high-tech litigation risks, Jason has been recognized as a Washington, D.C.Super Lawyer, as a "Future Star"
by Benchmark Litigation, and by Lawdragon magazine as among the top 3,000 attorneys in the United States. Jason
received his J.D. in 1994 from Harvard Law School, and his B.A. in 1991 from Brandeis University.
March 12, 2014
14
SEGMENT 1:
Corey Parker
Senior Consultant
Baker Tilly Virchow Krause, LLP
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

TCPA Litigation: Overview and Dangers
Jason A. Levine
Partner
Vinson & Elkins LLP
Washington, D.C.
(202) 639-6755
jlevine@velaw.com
March 12, 2014
15
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Perspectives on the TCPA
“The TCPA has become a juggernaut: a destructive force that threatens companies with annihilation for
technical violations that cause no actual injury or harm to any consumer”
-- U.S. Chamber Institute for Legal Reform, Oct. 2013
“Because plaintiffs may enforce the statute via class action and because a single advertisement is often
faxed to hundreds—if not thousands—of phone numbers, suits under the [TCPA] present lucrative
opportunities for plaintiffs’ firms”
-- Reliable Money Order, Inc. v. McKnight Sales Co., Inc. (7th Cir. 2013)
“How to Make A Telemarketer Cry (or, Suing Bozos for Fun & Profit)”
-- http://www.panix.com/~eck/telemarket.html (Oct. 15, 2013)
March 12, 2014
16
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Contents
 TCPA Primer and Quick Reference Guide
 Introduction to “Consent” Requirement
 Top Five Litigation Dangers
 Uncapped Statutory Damages and Incentives To Sue
 Concurrent Federal-State Jurisdiction
 Vicarious Liability
 Wrong-Number Liability
 Insurance Coverage Confusion
 Recent Litigation Statistics
 Speaker Biography
March 12, 2014
17
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Basic TCPA Primer
Telephone Consumer Protection Act of 1991, 42 U.S.C. § 227
Creates private right of action to sue for $500 “per violation” for:
calls to mobile phones “using any automatic telephone dialing system or an artificial or recorded voice”
unless “for emergency purposes,” no commercial purpose, or with “prior express consent of the called
party”
calls to land lines “using an artificial or prerecorded voice” unless “for emergency purposes,” no
commercial purpose, with the “prior express consent of the called party,” or exempted by the FCC
faxes comprising an “unsolicited advertisement” unless with the “prior express consent” of the faxed
party
States can sue for “patterns or practices” of junk faxing, and the FCC can impose fines of up to $11,000
per violation
Damages can be trebled—to $1,500—per “willful or knowing” violation
Consent is King!
March 12, 2014
18
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

“Prior Express Written Consent”
As of October 16, 2013, pre-recorded and autodialed calls require “prior express written consent”
Requires “an agreement, in writing, bearing the signature of the person called that clearly authorized
the seller to deliver or cause to be delivered . . . Advertisements or telemarketing messages using an
automatic telephone dialing system or an artificial or pre-recorded voice, and the telephone number to
which . . . such . . . Messages [are] to be delivered”
The written consent may be obtained electronically
Eliminates the “established business relation” exception
Opt-out mechanism must be announced and available through the call
Likely to spawn additional litigation over consent issues—a gold mine
March 12, 2014
19
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Litigation Danger #1: Uncapped Statutory Damages
The TCPA sets no upper bound on damages, unlike statutes like the Fair Debt Collection Practices Act
Simple multiplication:
One promotional text message to 100,000 people who previously used phones to order services = class
action claim for $50 million
If sent knowing recipients did not expressly consent = class action claim for $150 million
Ten daily messages to same recipients over 10-day period = class action clams for $500 million,
possibly trebled to $1.5 billion
TCPA liability has bankrupted companies
March 12, 2014
20
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Incentive To Sue and Settle TCPA Suits
Settle for pennies on the dollar? Still costly, and lucrative for plaintiffs’ counsel
Rose v. Bank of America (N.D. Cal.)– 7.7 million calls/texts—exposure over $3.5 billion
$32 million total; $8 million fee award
Arthur v. Sallie Mae (W.D. Wash.)–8 million calls—exposure of $4 billion
$24.1 million total; $4.8 million fee award
Malta v. Freddie Mac (S.D. Cal.)–5.9 million calls—exposure over $2.9 billion
$17 million total; $4.3 million fee award
Ira Holtzman, C.P.A. v. Turza (7th Cir. 2013)
Upholding $4,215,000 summary judgment award against solo attorney who faxed occasional
newsletters to 200 accountants
“Even a recipient who gets the fax on a computer and deletes it without printing suffers some loss; the
value of the time necessary to realize that the inbox has been cluttered by junk”
March 12, 2014
21
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

TCPA “Advisors” and Plaintiffs’ Firms
TCPA litigation is a new cottage industry, now that plaintiffs’ firms have “discovered” the statute
Blogs and websites teach how to induce marketing calls and texts for lawsuits and profit
Some explain how to “set up” TCPA lawsuits to maximize damages and negotiate quick settlements
Many law firms recruit class representatives for suits based on a single call, text, or fax
TCPA “hotbeds”: S.D. Cal. (Los Angeles), N.D. Cal. (San Francisco), S.D. Fla. (Miami), N.D. Ill.
(Chicago)
March 12, 2014
22
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Litigation Danger #2: Concurrent Federal-State Jurisdiction
Original intent of TCPA in 1991:
Empower consumers to sue for $500 in small claims court, without needing a lawyer
 Federal courts often refused to exercise jurisdiction over TCPA suits
Class Action Fairness Act of 2005:
State-court class actions seeking over $5 million in damages made removable to federal court
Let defendants escape state court TCPA class actions
Mims v. Arrow Financial (U.S. Sup. Ct. 2012):
“Federal question” jurisdiction extends to TCPA suits
Plaintiffs can choose state or federal court; defendants can remove state suits to federal court
Concurrent jurisdiction = more courts available for TCPA lawsuits
Breeds litigation over federal/state law control of issues in cases
March 12, 2014
23
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Litigation Danger #3: Vicarious Liability
FCC Order, May 9, 2013: federal common law of agency governs TCPA vicarious liability
Provided “helpful” examples that exceed the law of agency
Being challenged in court: DISH Network v. FCC (D.C. Cir.)
Businesses can be held liable for TCPA violations by agents acting to “benefit” them, even absent
specific instructions
Mere mention of company’s name in message—even if it did not send or authorize it—suffices for
liability if marketer violates TCPA
Internal practices and procedures to prevent TCPA violations are irrelevant as to liability based on
marketer’s actions
Particular danger for companies that outsource marketing—important to demand and monitor for
TCPA compliance
March 12, 2014
24
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Litigation Danger #4: Wrong-Number Liability
A prominent federal court of appeals recently decided what happens when a creditor calls the wrong
person accidentally
Debt collector called number provided by consenting debtor—but the number had changed hands
Seventh Circuit (Easterbrook, J.) held that TCPA requires consent of the called party, not just the
intended recipient
The Court advised callers to limit liability by manually dialing first call to verify identify, and using reverse
lookup to identify current phone number holder
-- Soppet v. Enhanced Recovery Co., LLC (7th Cir. 2012)
Essentially strict liability for dialing wrong number!
March 12, 2014
25
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Litigation Danger #5: Insurance Coverage Unclear
TCPA liability may be covered by “advertising injury” policies or provisions on their face
But insurers have long argued that TCPA damages are fines or penalties, not covered by “advertising
injury” provisions
Also, commercial general liability policies typically exclude occurrences arising from distribution of
material in violation of a statute
Courts are split over whether TCPA damages are insurable
Illinois and Missouri Supreme Courts have ruled that TCPA damages are not punitive and thus are
insurable
Federal courts in Pennsylvania, South Carolina, and Michigan have upheld coverage denials based on
exclusions
Close review of insurance policies is imperative
March 12, 2014
26
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Recent TCPA Class-Action Statistics
Class-action statistics from January-June 2013 reveal:
40 TCPA class actions filed—trend is upward
88% alleged nationwide classes, not state-specific
Split: texts (37%), faxes (31%), and calls (28%)—all three are vulnerable
88% focused on absence of prior consent as primary theory—this will likely increase given the new FCC
regulation
Cases cross diverse industries—only 30% of complaints were filed against marketing, financial service,
debt collection, and telecommunication companies combined
Other industries: retail (8%), pharmaceutical (6%), construction (6%), food (6%), health care (2%),
automotive (2%), and political (2%)
IT CAN HAPPEN TO YOU!
IF IN DOUBT, CONSULT COUNSEL.
Source: Gajewski & Zetoony, “Managing Legal Risks: Trends in Mobile, Text Message, and Telephone TCPA Class Action Litigation”
(Sept. 2013)
March 12, 2014
27
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Additional Biography
A versatile trial and appellate lawyer for over 15 years, Jason is a partner in the Washington, D.C. office
of Vinson & Elkins LLP., where he represents clients in their most important business litigation. Jason
defends against class actions and serves as lead counsel in cases involving contract disputes, fraud,
business torts, antitrust, and constitutional claims. Jason has tried 10 substantial jury and non-jury cases
and often advises clients on technology-related liability risks, including those posed by the TCPA and by
the use of email in business negotiations.
Reflecting the diversity of his business litigation practice, within a recent six-month period Jason tried and
won a full defense verdict in a $70 million jury trial over an alleged breach of contract, defeated the U.S.
Government’s motion to dismiss his client’s claim in a $250 million civil forfeiture case, and secured full
payment of his client’s damages in a complex fraud case.
Jason has been recognized as a Washington, D.C. Super Lawyer (2012-13), as a "Future Star" by
Benchmark Litigation (2012-13), and by Lawdragon as one of the top 3,000 attorneys in the U.S. (2008-
11) and as one of 500 attorneys “carrying the legal profession to new frontiers“ (2006).
Jason received his J.D. in 1994 from Harvard Law School (cum laude), and his B.A. in 1991 from
Brandeis University (summa cum laude, Phi Beta Kappa). He was a judicial law clerk for (now Chief)
Judge Randall Rader on the U.S. Court of Appeals for the Federal Circuit from 1994-95.
Contact Jason at (202) 639-6755, or by email at jlevine@velaw.com.
March 12, 2014
28
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

PROGRAM DISCLAIMER: The content of this presentation is
intended for educational and informational purposes only. It does
not constitute the provision of legal advice or services by Vinson &
Elkins LLP.
March 12, 2014
29
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

Introduction
Debra is a seasoned litigator whose practice encompasses the litigation, arbitration and mediation of all types of intellectual
property claims including Lanham Act actions, trademark infringement, trade dress infringement, misappropriation of trade
secrets, copyright infringement, patent infringement, right of publicity as well as general commercial litigation claims. Debra
also has experience in the litigation and arbitration of Telephone Consumer Protection Act (TCPA) class actions and
advises clients on TCPA compliance issues. Additionally, Debra advises clients on litigation readiness and ediscovery
protocols, serves as an active member of the Seventh Circuit E-Discovery Pilot Program Committee and is an adjunct
professor at Chicago-Kent Law School.
March 12, 2014
30
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP

What is an Automatic Telephone Dialing System (“ATDS”)
March 12, 2014
31
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 The TCPA defines an automatic telephone dialing system to mean “equipment which has the
capacity (A) to store or produce telephone numbers to be called, using a random or sequential
number generator; and (B) to dial such numbers.” 47 U.S.C. §227(a)(1); 47 C.F.R. 64.1200(f)(2)

Interpretation of ATDS by the FCC
March 12, 2014
32
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
– An ATDS encompasses hardware that “when paired with certain software, has the capacity
to store or produce numbers and dial those numbers at random, in sequential order, or from
a database of numbers.” FCC’s June 26, 2003 Report and Order ¶131.
– The “basic function” of an autodialer is the “capacity to dial numbers without human
intervention.” FCC’s June 26, 2003 Report and Order ¶132.
– The FCC “has emphasized that this [ATDS] definition covers any equipment that has the
specified capacity to generate numbers and dial them without human intervention regardless
of whether the numbers called are randomly or sequentially generated or come from calling
lists. FCC’s November 26, 2012 Declaratory Order ¶5.

Interpretation of ATDS by the Courts
March 12, 2014
33
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Satterfield v. Simon & Schuster, 569 F.3d 946 (9th
Cir. 2009)
 a system need not actually store, produce, or call randomly or sequentially generated telephone
numbers, it need only have the capacity to do it.

March 12, 2014
34
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Nelson v. Santander Consumer USA, Inc., 2013 U.S. Dist. LEXIS 40799 (W.D. Wis. Mar. 8, 2013)
 “Under both the statute and the order, the question is not how the defendant made a particular
call, but whether the system it used had the capacity to make automated calls.” (However, this
opinion was vacated by agreement of the parties per settlement).
 Dobbin v. Wells Fargo Auto Finance, 2011 WL 2446566 (N.D. Ill. June 14, 2011)
 Calls manually dialed by desk phones used independently of predictive dialing technology do
not satisfy ATDS definition.

March 12, 2014
35
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Griffith v. Consumer Portfolio Serv., Inc., 838 F.Supp.2d 723 (N.D. Ill. 2011)
 Equipment could be treated as an ATDS if it could be programmed in the future to perform
ATDS functions.

March 12, 2014
36
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Hunt v. 21st
Mortgage Corp., 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013)
 “[T]o meet the TCPA definition of an ‘automatic telephone dialing system,’ a system must have a
present capacity at the time the calls were being made, to store or produce and call numbers
from a number generator. While a defendant can be liable under §227(b)(1)(A) whenever it has
such a system, even if it does not make use of the automatic dialing capability, it cannot be held
liable if substantial modification or alteration of the system would be required to reach that
capability.”
 Gragg v. Orange Cab Co., Inc., 2014 WL 494862 (W.D. Wash. Feb. 7, 2014)
 The court analyzed whether the Defendant’s system had “a present, not potential capacity to
store, produce, or call randomly or sequentially generated telephone numbers.”

March 12, 2014
37
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Pending FCC Petitions on ATDS
 Professional Association for Professional Engagement (“PACE”)-October 2013
 FCC should define “capacity” as the “current ability to operate or perform an action, when
placing a call, without first being modified or technologically altered.”
 ACA International-January 2014
 FCC should define “capacity” as the present ability

March 12, 2014
38
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Youmail, Inc. –April 2013
 FCC should clarify that YouMail’s auto-reply system is not an ATDS , that YouMail does not
“initiate” the sending of auto-replies, and that calling parties consent to the receipt of auto-
replies.
 Glide Talk, Ltd. –October 2013
 FCC should confirm that ATDS restriction applies only to equipment that can, at the time of the
call, be used to store or generate sequential or randomized telephone numbers; and software
and application providers that enable consumers to choose to send invitational text messages to
not “make” calls under the TCPA merely by facilitating the ability of their users to send the text
messages.

March 12, 2014
39
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Pending FCC Petition on ATDS
 GroupMe (Skype)—March 2012
 defining "capacity" to encompass only equipment that, at the time of use, could, in fact, have
autodialed random or sequential numbers without human intervention and without first being
technologically altered.

March 12, 2014
40
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Communication Innovators—June 2012
 The Commission should clarify that the definition of an autodialer under the TCPA reflects
equipment that has a present capacity, such as having the current ability to generate and dial
random or sequential numbers without additional modifications to the equipment.
 The Commission should not interpret capacity as encompassing any conceivable hardware or
software modification to a device that would permit it to generate, store, and dial numbers
randomly or in sequence.

March 12, 2014
41
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Importance of Clarifying the term “Capacity”
 If the term “capacity” is construed as to include only potential or theoretical capacity—then many
ordinary consumer devices such as smartphones and laptop computers would fall within the sweep of
the statute--that is because they have the theoretical or potential “capacity” to randomly or
sequentially generate numbers and dial them—albeit, with the installation of an appropriate
application or software.

March 12, 2014
42
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Pending FCC Petitions on Consent
 Generally, often attempt to address the difference in consent requirements between landlines and
wireless numbers—particularly informational messages.

March 12, 2014
43
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 GroupMe, Inc. –March 2012
 “intermediary consent constitutes ‘prior express consent’ under the TCPA when calls or text
messages are non-commercial, administrative or informational”
 Glide Talk, Ltd.—October 2013
 to the extent that an app provider is considered a "make[ r ]" of a call, the Commission should
clarify that the app provider reasonably can rely on any consent to make social communications
that the call recipient has provided to the app user.

March 12, 2014
44
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
1) The consent must be a “signed” writing but the term "signed" includes an electronic or digital form of
signature to the extent such form of signature is recognized as a valid signature under applicable federal
or state contract laws. Written agreements obtained in compliance with the E-SIGN Act satisfy the
requirements, such as agreements obtained via email, website form, text message, telephone keypress,
or voice recording;
2) The consent must clearly authorize the seller to deliver or cause to be delivered the marketing
message to the telephone number specifically authorized by the signatory;
Regulations Effective October 2013 Regarding Consent

March 12, 2014
45
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Regulations Effective October 2013 Regarding Consent
3) The written agreement shall include a clear and conspicuous disclosure informing the person signing
that:
By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the
signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded
voice; and
The person is not required to sign the agreement (directly or indirectly) or agree to enter into such an
agreement as a condition of purchasing any property, goods, or services.

March 12, 2014
46
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
 Cargo Airline Ass’n – August 2012
 Consent should not be required for informational package delivery notifications to cell phones.
 Retail Industry Leaders Ass’n—Dec. 201
 Regulations should not apply to isolated, immediate, one-time responses to consumer-initiated
requests for text offers (“on demand text offers” or “on demand texts”).

March 12, 2014
47
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Pending FCC Petitions on Miscellaneous Issues
 ccAdvertising and Revolution Messaging—January 2012
 Internet-to-phone text messaging
 Coalition of Mobile Engagement Providers, Direct Marketing Ass’n—October 2013
 Retroactivity of October 2013 regulations
 ACA International—January 2014
 Clarifying that predictive dialers are not ATDS
 Prior express consent should be for original customer
 Safe harbor for wrong numbers dialed

March 12, 2014
48
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Compliance Tips for Companies engaging in SMS/text message marketing
 Make sure that you only send SMS/text messages to wireless numbers for which you have prior
express written permission via for example, website check-box (should not be “pre-checked”), email,
or consumer initiated text;
 Only send SMS messages during the time allowed by the applicable state statutes, if any; but at least
only between the local hours of 8am and 9pm;
 Provide clear opportunity for opt outs (e.g. “Stop,” “unsubscribe,” “cancel” “quit”) and information that
“Msg & data rates may apply;”

March 12, 2014
49
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
Compliance Tips
 Maintain accessible records of consents;
 Only employ vendors who can affirmatively demonstrate knowledge of and compliance with the
requirements of the TCPA and have a clear contract that addresses the respective obligations,
responsibilities and liability;
 Have a policy in place regarding the use of SMS/text message marketing; and
 Review and otherwise comply with the guidelines set forth in the Mobile Marketing Association’s U.S.
Consumer Best Practices and the CTIA Guidelines

March 12, 2014
50
SEGMENT 1:
Corey Parker
Senior Consultant
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
PROGRAM DISCLAIMER: The content of this presentation is intended
for educational and informational purposes only. It does not constitute
the provision of legal advice or services by Perkins Coie LLP

March 12, 2014
51
CLE PROCESSING
The Knowledge Group offers complete CLE processing solutions for your webcasts and land events. This comprehensive service
includes everything you need to offer CLE credit at your conference:
Complete end-to-end CLE credit Solutions
Setting up your marketing collateral properly.
Completing and filing all of the applications to the state bar.
Guidance on how to structure content meet course material requirements for the state Bars.
Sign up forms to be used to check & confirm attendance at your event.
Issuing official Certificates of Attendance for credit to attendees.
Obtaining CLE credit varies from state to state and the rules can be complex. The Knowledge Group will help you navigate the
complexities via complete cost effective CLE solutions for your conferences.
Most CLE processing plans are just $499 plus filing fees and postage.
To learn more email us at info@knowledgecongress.org or CALL 646-202-9344

March 12, 2014
52
PRIVATE LABEL PROGRAM & INTERNAL TRAINING
The Knowledge Group provides complete private label webcasts and in-house training solutions. Developing and executing webcasts can be a huge logistical nightmare. There are a lot of moving
parts and devolving a program that is executed smoothly and cost effectively can prove to be a significant challenge for companies who do not produce events on a regular basis. Live events require
a high level of proficiency in order to execute proficiently. Our producers will plan and develop your webcast for you and our webcast technicians will execute your live event with expert precision. We
have produced over 1000 live webcasts. Put our vast expertise to work for you. Let us develop a professional webcast for your firm that will impress all your clients and internal stakeholders.
Private Label Programs Include:
Complete Project Management
Topic Development
Recruitment of Speakers (Or you can use your own)
Marketing Material Design
PR Campaign
Marketing Campaign
Event Webpage Design
Slides: Design and Content Development
Speaker coordination: Arranging & Executing Calls, Coordinating Slides & Content
Attendee Registration
Complete LIVE Event Management for Speaker and Attendees including:
o Technical Support
o Event Moderator
o Running the Live event (All Aspects)
o Multiple Technical Back-ups & Redundancies to Ensure a Perfect Live Event
o Webcast Recording (MP3 Audio & MP4 Video)
o Post Webcast Performance Survey
CLE and CPE Processing
Private Label Programs Start at just $999

March 12, 2014
53
RESEARCH & BUSINESS PROCESS OUTSOURCING
The Knowledge Group specializes in highly focused and intelligent market and topic research. Outsource your research projects and business processes to our team of experts. Normally we can run programs for less than 50% of
what it would cost you to do it in-house.
Here are some ideal uses for our services:
Market Research and Production
o List Research (Prospects, Clients, Market Evaluation, Sales Lists, Surveys)
o Design of Electronic Marketing Collateral
o Executing Online Marketing Campaigns (Direct Email, PR Campaigns)
o Website Design
o Social Media
Analysis & Research
o Research Companies & Produce Reports
o Research for Cases
o Specialized Research Projects
eSales (Electronic Inside Sales – Email and Online)
o Sales Leads Development
o eSales Campaigns
 Inside Sales people will prospect for leased, contact them and coordinate with your sales team to follow up.
 Our Inside eSales reps specialize in developing leads for big-ticket enterprise level products and services.
o Electronic Database Building – Comprehensive service which includes development of sales leads, contacting clients, scoring leads, adding notes and transferring the entire data set to you for your internal sales
reps.
eCustomer Service (Electronic Inside Sales – Email and Online)
o Real-Time Customer Service for Your clients
 Online Chat
 Email
o Follow-Up Customer Service
 Responds to emails
 Conducts Research
 Replies Back to Your Customer
Please note these are just a few ways our experts can help with your Business Process Outsourcing needs. If you have a project not specifically listed above please contact us to see if we can help.

Introduction
Chad is a partner in the financial services litigation practice of Troutman Sanders LLP, where he focuses on the defense of
consumer class actions and general business litigation.
Chad has substantial experience defending major consumer class action litigation in cases involving alleged false
advertising, product defects, charging for fees and services by a variety of businesses, including computer, software,
telecommunications, home warranty, insurance brokerage, and auto finance companies. He is well versed in California’s
Unfair Competition Statutes, including Business & Professions Code Section 17200. He has tried cases to verdict before
courts and private arbitrators and has substantial experience in mediation.
March 12, 2014
54
SEGMENT 1:
Reshma Patel - Jackson
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA Federal Court Private Litigation
March 12, 2014
55
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner
Sept 1-30, 2013 August 1-31, 2013 Sept 1-30, 2012
162 165 75
TCPA suits were up 116% from September 2012 to September 2013

Class Certification Issues Under the TCPA
•TCPA classes may be more difficult to certify and/or settle after:
• Connelly v. Hilton,
• Smith v. Microsoft, and
• Newman v. AmeriCredit Financial Services, Inc.
March 12, 2014
56
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Fed. R. Civ. P. 23 Prerequisites
• Numerosity
º So numerous that joinder is impracticable
• Commonality
º Common questions of law or fact
• Typicality
º Claims or defenses are typical
• Fairness
º Representative parties will fairly and adequately protect the interests of the class
March 12, 2014
57
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Connelly v. Hilton Grand Vacations Co., LLC
No. 12-cv-599 (S.D. Ca. Oct. 29, 2013).
•Background:
• The complaint alleged that subsidiary Hilton Grand Vacations made over 37 million illegal
telemarketing calls to more than six million cell phones over a four-year period, seeking between
$18 million and $54 million in statutory damages.
• Connelly moved to certify the class, but Hilton objected, arguing that the proposed class failed
to meet the predominance requirements under Civil Procedure Rule 23(b)(3).
• The hotel chain argued that potential class members voluntarily provided their contact
information to Hilton in a variety of ways.
March 12, 2014
58
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Connelly v. Hilton…
• Holding:
• Court held that the class could not be certified because the issue of consent had to be
addressed on an individualized basis.
• Predominance
º Express consent was provided in a variety of factual scenarios.
º These forms of interaction with Hilton are relevant to a determination of prior express
consent.
March 12, 2014
59
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Connelly v. Hilton…
• Rule 23(b)(2) settlement:
• Court held that individualized statutory damages are also ineligible for (b)(2) certification,
regardless of parallel request for injunctive relief.
• Practical Implications:
• Companies should offer numerous ways to provide consent in order to reduce the potential for
standardization, which
leads to easier class certification.
March 12, 2014
60
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Smith v. Microsoft
No. 11-cv-1958 (S.D. Ca. Jan. 28, 2014).
• Background: Plaintiff sought certification of a class consisting of all individuals that “received a
text message from short code 88202 containing the term ‘Xbox’ on September 12 or September
13, 2008.”
º The plaintiff alleged that Microsoft utilized a text-message advertising company to send
approximately 90,000 text messages promoting Microsoft’s Xbox and that he did not
consent to receive telemarketing text messages sent on behalf of Microsoft.
March 12, 2014
61
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Smith v. Microsoft…
• On January 28, 2014, Court denied the motion to certify the class.
• Holding:
• Superiority
º Individual testimony was needed to determine a myriad of facts, including identities of
subscribers and “prior express consent.”
• TCPA was never meant for class actions
º Small claims court
March 12, 2014
62
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Smith v. Microsoft …
• Venue – Does not make logical sense because class representative is a resident of Illinois and
contacts to California are minimal.
• Manageability
• Notice
• Calculation of individual damages
• Distribution of damages
March 12, 2014
63
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Smith v. Microsoft …
• Prior Express Consent – Significant evidentiary concerns were present.
• Ascertainability – Narrowing class to those customers who actually received the text is difficult.
• Plaintiff only had phone numbers, but did not have which consumer received the text.
March 12, 2014
64
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Smith v. Microsoft…
• Oppose Class Certification.
º Constantly explore issues surrounding ascertainability and manageability.
March 12, 2014
65
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Newman v. Americredit Financial Services, Inc.
No. 11-cv-3041 (S.D. Ca. Feb. 3, 2014).
•Background:
• Plaintiffs in two consolidated class actions assert that Defendant used autodialing equipment or
a prerecorded voice message to call consumers.
• The calls were allegedly made regardless of whether the individual had a loan account with the
company or not.
March 12, 2014
66
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Newman v. AmeriCredit …
• Holding:
• Court denied motion for class certification and settlement finding the proposed settlement deal
was confusing, among other reasons.
• Two Classes
º Account Holders
º Non-Account Holders
March 12, 2014
67
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Newman v. Americredit …
• Typicality
• Plaintiff is a member of the second class.
• Fairness
• Both classes are compensated the
same regardless of consent.
March 12, 2014
68
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

• Notice
• How to ascertain class and how to provide notice.
• Opt-Outs
• Not inclined to approve settlement which makes it unnecessarily burdensome to submit a claim
or opt out.
March 12, 2014
69
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

• Objections:
• Fees and Costs Filed Concurrently with Motion for Final settlement – does not provide class
members opportunity to object to fee motion itself.
• Notice is increasingly becoming a problem.
• Ascertaining this class was problematic because of the non-account holders.
• Limit scope and size of class when
possible.
March 12, 2014
70
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA - Recent Circuit Ruling
Dish Network, L.L.C. v. FCC, et al., No. 13-1182 (D.C. Cir. Jan. 22, 2014).
•Holding: D.C. Circuit panel refused Dish Network’s petition to review certain FCC guidance on TCPA.
Court held that FCC guidance was not binding on courts.
•Practical Impact: Federal agencies can issue influential legal interpretations, including of the TCPA,
without accountability or legal challenge in court.
March 12, 2014
71
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA - Prior Express Consent
Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. May 8, 2013).
•Holding: Neither creditors nor debt collectors have “prior express consent” to call a cell phone number
via an ATDS merely by obtaining a phone number on a credit application.
•Practical Impact: Outlier case that runs counter to 2008 TCPA guidance from the FCC.
March 12, 2014
72
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA - Prior Express Consent, cont.
Baird v. Sabre, Inc., 2014 U.S. Dist. LEXIS 11246 (C.D. Ca. Jan. 28, 2014).
•Holding: Individuals who knowingly release their cell phone numbers (e.g., on credit applications) have,
in effect, given their “prior express consent” to be called at that number.
•Practical Impact: Baird followed the FCC’s 2008 TCPA Order and hopefully should resolve concerns that
Mais would represent a bell-weather of change in the law.
March 12, 2014
73
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA - Prior Express Consent, cont.
Wills v. Optimum Outcomes, Inc., 2014 U.S. Dist. LEXIS 7377 (D. Utah 2014).
•Holding: Prior express consent is provided when a cellphone number is included in a dispute/cease &
desist letter to the creditor.
•Practical Impact: Provision of a cell phone number in any document could be considered “prior express
consent” under the TCPA.
March 12, 2014
74
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA - Good Faith Exception
Chyba v. First Fin. Asset Mgmt., 2013 U.S. Dist. LEXIS 165276 (S.D. Cal. Nov. 20, 2013)
•Holding: Where consumer listed cell phone number as “Home” number on rental car application,
Defendant had good faith basis to believe that Plaintiff provided “prior express consent.”
•Practical Impact: Shakes up the notion that the TCPA is a strict liability statute.
March 12, 2014
75
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

TCPA - Standing
Olney v. Progressive Casualty Ins. Co., 2014 U.S. Dist. LEXIS 9146 (S.D. Ca. Jan. 24, 2014)
•Holding: The party with standing under TCPA is the subscriber of the telephone number, which is both:
(1) The “account holder,” and (2) The “regular user” of the phone.
•Practical Impact: Provides for a potentially dispositive affirmative defense on standing grounds.
March 12, 2014
76
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Conclusion
• TCPA lawsuits are continuing on an upward trend.
• Companies need to undertake a complete TCPA compliance audit to prepare for future litigation.
• Oppose certification when possible.
March 12, 2014
77
SEGMENT 1:
Manager
SEGMENT 3:
Chad R. Fuller
Partner

Introduction
Lea Lockhart practices in the area of health care law with a focus on health information technology, general business
transactions and services, privacy and security and electronic health records. Prior to joining Hall Render, Lea graduated
from Saint Louis University School of Law and earned a Master of Health Administration from Saint Louis University
College for Public Health and Social Justice. She completed a fellowship at Saint Louis University Hospital and assisted the
hospital in researching business and transactional matters, such as physician arrangements, hospital and physician liability,
certification and licensure issues and medical staff matters and credentialing. Lea was also a lead editor for the Saint Louis
University Journal of Health Law & Policy and interned at MetroHealth Medical Center in Cleveland, Ohio.
March 12, 2014
78
SEGMENT 1:
Manager
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Introduction
Joshua Reading concentrates his practice on health information technology, business transactions and tax/tax exemption,
with a focus on helping clients in the negotiation and acquisition of a variety of technology and services products. He also
assists clients with matters concerning foundations and support organizations, governance consulting, physician alignment
and physician group practices. Joshua graduated magna cum laude from Indiana University Maurer School of Law and is a
member of the Indianapolis Bar Association, the Indiana State Bar Association and the American Health Lawyers
Association.
March 12, 2014
79
SEGMENT 1:
Manager
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.

March 12, 2014
80
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.
Risks and Best Practices
The TCPA and Healthcare Providers

TCPA Implications for Healthcare Providers
• Follow-up phone calls to patients
• Automated messages as appointment reminders
• Phone calls/texts following up on data transmissions
• Debt collection purposes
• Vicarious liability for third party service providers
March 12, 2014
81
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Forms of Communication
March 12, 2014
82
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.
• Text messages (SMS) are considered phone calls and are governed by the TCPA
• Residential lines vs. cell phones
• Artificial and pre-recorded calls (“robo calls”)
• Auto-dialed calls
• Dual-purpose calls
– Chesbro v. Best Buy Stores, L.P.
– Facts and circumstances analysis

Established Business Relationship
• October 16, 2013 regulations removed the “established business relationship” exception
• Many healthcare providers previously relied on this exception
– Debt collection companies as agents for healthcare providers
March 12, 2014
83
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Consent Requirements
• The October 2013 regulations also clarified that the “prior express consent” requirement means
written consent for certain communications
– Healthcare providers must now have consent from patients in writing for covered
communications
• For certain communications, only prior express consent is required (e.g., verbal)
– Implied consent is not sufficient for this requirement (e.g., patient providing his/her phone
number – Mais case)
March 12, 2014
84
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Healthcare Exception
• “Healthcare” messages made by, or on behalf of, a “covered entity” or its “business associate”
covered by HIPAA
– For calls to residential phones, no consent required
– For calls to cell phones, written consent is not required, but some prior express consent is still
required (e.g., verbal)
March 12, 2014
85
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Tax-Exempt Non-Profit Organizations
• Calls/messages made on behalf of a 501(c)(3) entity
– For calls to residential phones, no consent required
– For calls to cell phones, written consent is not required, but some prior express consent is still
required (e.g., verbal)
March 12, 2014
86
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

ID and Opt-Out Requirements
• All artificial and pre-recorded calls that are not healthcare related must:
– State at the beginning of the message the entity responsible for the message
– During or after the message, state the phone number of the entity responsible for the message
• For artificial and pre-recorded calls delivering a telemarketing message, the call must include an
automated opt-out mechanism
– As with the ID requirements, healthcare messages are exempted from this opt-out requirement
March 12, 2014
87
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Penalties and Recent Enforcement Actions
• Private right of action
– Individuals who receive the calls/messages can sue
• Statutory damages
• $500 per call/message
• $1,500 per call/message if it was a knowing or willful violation
• No cap on class action damages
• Mais v. Gulf Coast Collection Bureau, Inc.
– Burden of demonstrating prior express consent rests with party defending the TCPA claim – in
this case a collection agency working for a hospital
– Hospital was not found vicariously liable in this case
March 12, 2014
88
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

CAN-SPAM Act Something to Be Aware Of
• Regulates the automatic sending of commercial emails
• There are exceptions for “transactional” or “relationship” based emails
• Some emails are received by cell phones as SMS and may be covered by the TCPA as well
March 12, 2014
89
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

Best Practices for Healthcare Providers
• Patient Consent Forms
– Include authorization for communications on standard consent form (written consent)
– Make sure scope of authorization includes billing and collection services agencies
• When written consent is not available, for healthcare messages, obtain verbal consent while
collecting contact information
• Retain consent forms for at least four years (federal statute of limitations for TCPA actions)
March 12, 2014
90
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.

► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type
your question in the box that appears and click send.
► Questions will be answered in the order they are received.
Q&A:
March 12, 2014
91
SEGMENT 1:
Debra R. Bernard
Litigation Partner, Co-Chair E-Discovery
Services & Strategy Group
Perkins Coie LLP
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP
SEGMENT 3:
Chad R. Fuller
Partner
SEGMENT 4:
Lea H. Lockhart
Attorney
P.C.
SEGMENT 4:
Joshua P. Reading
Attorney
P.C.
SEGMENT 2:
Debra R. Bernard
Partner
Perkins Coie LLP
SEGMENT 1:
Jason A. Levine
Partner
Vinson & Elkins LLP

March 12, 2014
92
Welcome to the Knowledge Group Unlimited Subscription Programs. We have Two Options Available for You:
FREE UNLIMITED: This program is free of charge with no further costs or obligations. It includes:
 Unlimited access to over 15,000 pages of course material from all Knowledge Group Webcasts.
 Subscribers to this program can download any slides, white papers, or supplemental material covered during all live webcasts.
 50% discount for purchase of all Live webcasts and downloaded recordings.
PAID UNLIMITED: Our most comprehensive and cost-effective plan, for a one-time fee:
 Access to all LIVE Webcasts (Normally $199 to $349 for each event without a subscription). Including: Bring-a-Friend – Invite a client
or associate outside your firm to attend for FREE. Sign up for as many webcasts as you wish.
 Access to all of Recorded/Archived Events & Course Material includes 1,500+ hours of audio material (Normally $299 for each event
without a subscription).
 Free CLE/CPE/CE Processing3
(Normally $49 Per Course without a subscription).
 Access to over 15,000 pages of course material from Knowledge Group Webcasts.
 Ability to invite a guest of your choice to attend any live webcast Free of charge. (Exclusive benefit only available for PAID UNLIMITED
subscribers.)
 6 Month Subscription is $299 with No Additional Fees. Other options are available.
 Special Offer: Sign up today and add 2 of your colleagues to your plan for free. Check the “Triple Play” box on the sign-up sheet
contained in the link below.

March 12, 2014
93
Knowledge Group UNLIMITED PAID Subscription Programs Pricing:
Individual Subscription Fees: (2 Options)
Semi-Annual: $299 one-time fee for a 6 month subscription with unlimited access to all webcasts, recordings, and materials.
Annual: $499 one-time fee for a 12 month unlimited subscription with unlimited access to all webcasts, recordings, and materials.
Group plans are available. See the registration form for details.
Best ways to sign up:
1.Fill out the sign up form attached to the post conference survey email.
2.Sign up online by clicking the link contained in the post conference survey email.
3. Click the link below or the one we just posted in the chat window to the right.
Discounts:
Enroll today and you will be eligible for the “Triple Play” program and 3% off if you pay by credit card. Also we will waive the $49
CLE/CPE processing fee for today’s conference. See the form attached to the post conference survey email for details.
Questions: Send an email to: info@knowledgecongress.org with “Unlimited” in the subject.

March 12, 2014
94
ABOUT THE KNOWLEDGE GROUP, LLC.
The Knowledge Group, LLC is an organization that produces live webcasts which examine regulatory
changes and their impacts across a variety of industries. “We bring together the world's leading
authorities and industry participants through informative two-hour webcasts to study the impact of
changing regulations.”
If you would like to be informed of other upcoming events, please click here.
Disclaimer:
The Knowledge Group, LLC is producing this event for information purposes only. We do not intend to
provide or offer business advice.
The contents of this event are based upon the opinions of our speakers. The Knowledge Congress
does not warrant their accuracy and completeness. The statements made by them are based on their
independent opinions and does not necessarily reflect that of The Knowledge Congress' views.
In no event shall The Knowledge Congress be liable to any person or business entity for any special,
direct, indirect, punitive, incidental or consequential damages as a result of any information gathered
from this webcast.
Certain images and/or photos on this page are the copyrighted property of 123RF Limited, their
Contributors or Licensed Partners and are being used with permission under license. These images
and/or photos may not be copied or downloaded without permission from 123RF Limited

New Telephone Consumer Protection Act: Boon or Bane to Your Company?

Recomendados

Recomendados

Más contenido relacionado

Más de Thomas LaPointe

Más de Thomas LaPointe (14)

Último

Último (20)

New Telephone Consumer Protection Act: Boon or Bane to Your Company?