JULY 2013
Legal Focus
99
position prior to suit, while also considering the company’s business goals and needs.
Second, we aggressively defend our clients in the face of a TCPA lawsuit. We immediately assess the parties involved (many are repeat players), the primary merit issues in the case, possible defenses, likelihood of class certification, supporting documentation and data from the client, and whether there may be indemnification or insurance coverage. We pride ourselves on taking creative approaches to resolving these cases, including the use of mandatory arbitration clauses and the presentation of unique defenses. We recently achieved summary judgment for our client by arguing that it enjoyed derivative sovereign immunity for the acts it undertook on behalf of the U.S. Navy for a text message recruiting campaign. This is the first case of its kind to apply the derivative sovereign immunity doctrine to a TCPA case.
What legislative changes would you make to the tCPA?
We would enact legislation that would prohibit class actions under the TCPA and provide that only individual suits may be brought, preferably in small claims court where Congress intended. Many TCPA class actions take advantage of a loophole or ambiguity in the law and result in damage or settlement amounts that are completely disproportionate to the harm alleged or caused (if any). A great example are cases finding liability against companies for dialing the mobile number of a former customer who provided consent to be contacted on that number only to discover that the customer changed their telephone number without providing notice. The recent surge of consumer class actions threatens to stifle new technology, deter innovation, and interfere with effective means for businesses to communicate with their consumers. If we could make these legislative changes, our practice would change significantly, but it is a price we would be willing to pay for our clients. LM
Michael L. Mallow heads Loeb & Loeb’s Consumer Protection Defense Department and is a trial lawyer known for handling high stakes litigation cases and defending clients against aggressive consumer protection laws in regulatory and consumer class actions. He represents companies in a variety of areas, including false and deceptive advertising, unfair competition, economic product defect, breach of privacy and unlawful data collection, transmission or usage. Mr. Mallow has been advising clients on TCPA-related issues since 1998. In addition to his litigation practice, he regularly counsels clients on marketing and advertising issues and has particular experience in the automotive, debt collection and settlement, dietary supplement, telemarketing, electronic mail marketing, Internet, and lead generation industries.
Christine M. Reilly is a trial lawyer representing clients in major litigation in a wide variety of areas, including consumer protection, unfair competition, and false and deceptive advertising. Ms. Reilly focuses much of her practice on privacy- related issues and regularly defends clients in consumer class actions and investigations and proceedings initiated by the Federal Trade Commission, Federal Communications Commission, and other federal and state government agencies. She is a regular author and speaker on the TCPA and also administers Loeb & Loeb’s Telephone Consumer Protection Act (TCPA) Defense Forum discussion group on LinkedIn.
Contact:
Michael L. Mallow
Partner and Chair, Consumer Protection defense, Loeb & Loeb LLP
tel: 310.282.2287
Email:
mmallow@loeb.com Website:
www.loeb.com
Christine M. Reilly
Partner, Consumer Protection defense, Loeb & Loeb LLP
tel: 310.282.2361 Email:
creilly@loeb.com
www.lawyer-monthly.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132