CLIENT ALERT–DNC and ADA Class Action Updates

Companies marketing to consumers should be aware that there has been an uptick of litigation involving the National Do Not Call (“DNC”) Registry, which allows consumers to place their phone number on a list to not be called, and under the Americans with Disabilities Act(“ADA”), which requires reasonable accommodations for individuals with disabilities.

In particular, the Federal Trade Commission (“FTC”) opened and enforces the DNC Registry and has brought a couple of hundred enforcement actions against companies and telemarketers for Do Not Call violations. In addition, class action plaintiffs have been targeting businesses, alleging up to $500 in statutory damages for each violation, and up to $1,500 in statutory damages for each willful or knowing violation, under the Telephone Consumer Protection Act (“TCPA”). These damages add up quickly. For example, one class action plaintiff could seek $1.5 million in damages for one campaign that involved 1,000 calls. While there are certain exceptions, businesses using (or having third parties use) purchased data/lead lists can greatly reduce risks by at least scrubbing against the DNC Registry. Clients should also follow any applicable state laws and entity-specific Do Not Call lists as well as the Telemarketing Sales Rule, which is enforced by the FTC and can lead to civil penalties of over $43,000 per call/text and which can provide an alternative basis for the FTC to sue in court, even after the Supreme Court decision in AMG Capital Management (in addition, the House of Representatives has already approved a bill to restore the FTC’s power to seek monetary disgorgement in court).

Separately, under the ADA, plaintiffs’ class action firms have been suing online merchants to provide reasonable accommodations for persons with disabilities, e.g., conformity with screen readers for the vision impaired and alternative text features. There are a number of different vendors that can assist with making sure websites/apps are technically compliant with accessibility laws, and we can assist with reviewing any ADA policy. We have seen ADA cases on the rise, though fortunately, our firm has been able to successfully settle these cases.

If you have been sued in a DNC or ADA class action, or if you are defending an FTC lawsuit or investigation, we would be happy to assist. We can also work with you on compliance to lower the risks of a class-action lawsuit or government investigation arising in the first instance.