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New TCPA Class Certification May Spell Doom for Widely Used Method of Obtaining Consent

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Posted by Chris Alarie on Tue, 02/16/2021 - 11:53

The most frequent point of emphasis for any Telephone Consumer Protection Act (TCPA) compliance strategy is to obtain proper consent. While nothing is foolproof with regards to the TCPA, properly obtained, well documented consent is an invaluable tool in defense of any TCPA litigation. However, the decision of a District Court to grant certification to a TCPA class action last week has the potential to invalidate a widely used method of obtaining consent—something that could have terrible consequences for telemarketers who rely on that method.

The case—Williams v. PillPack LLC, C19-5282 TSZ, 2021 U.S. Dist. LEXIS 27496 (W.D. Wash.  February 12, 2021)—relates to a form of obtaining consent known as “written consent to call, oral consent to transfer.” Effectively, what this means is a caller will obtain written consent, through lead generation sites or otherwise, to make calls about a certain vertical or subject matter but not about the specific sellers on whose behalf they are calling. After obtaining additional information from the call recipient, the callers then determine which specific seller is best suited to address the consumers needs. It is at that point that the caller identifies the seller and obtains oral consent to transfer the call.

The plaintiff is not disputing the authenticity of the consent in either half of this process. Rather, the legal viability of the “written consent to call, oral consent to transfer” method itself is at issue. And, notably, the defendant is not the caller nor the lead seller but, rather, the seller on whose behalf the calls were made.

While the litigation process is only in its earliest stages, the mere fact that the court found grounds to grant certification is alarming. There is a distinct possibility that this case could invalidate a previously trusted method for obtaining consent and open up countless callers and sellers to potential TCPA class actions as a result.

While it is always foolhardy to make predictions about the eventual outcome of a case, the esteemed Eric Troutman at TCPAWorld sees reason to worry in the Court’s explanation of the decision to grant certification. It is very possible that this case will set a dangerous precent. It bears further attention.