if the caller would “ like to receive plan updates and promotions via text message ”; before ( 3 ) asking for the caller ’ s consent to “ contact [ them ] using an [ ] automated telephonic dialing system and / or prerecorded message ”; and finally , ( 4 ) informing the caller that they “ are not required to agree as a condition of purchasing any products and or services .” This script is used by DentalPlans for all incoming calls from noncustomers , though the actual conversations naturally vary depending on the caller ’ s response .
Plaintiff agreed to receive the calls as described by the representative . Plaintiff proceeded to successfully sign up for a Cigna dental discount plan through DentalPlans during the phone call .
After the plan expired , DentalPlans called the consumer using prerecorded calls to try to “ win back ” the consumer . Plaintiff sued under the TCPA for the calls , arguing she did not consent .
So there is your scenario . Pristine and perfect .
The TCPA ’ s required prior express written consent ( PEWC ) language is all in the script . But the script was read over the phone in a recorded call . Is it valid consent to permit DentalPlans to make the calls it later made ?
Nope .
The court goes through a very thorough and lengthy analysis that I won ’ t recite because it ’ s dull and , with love , you probably wouldn ’ t get it anyway . It is a rather complex legal analysis , but the court ’ s final conclusion is simple and critical for everyone to understand :
“[ T ] he required written disclosures outlined in § 64.1200 ( f )( 9 )( i ) of the TCPA cannot be provided via voice recording . Because these disclosures were not adequately provided , the voice recording cannot constitute a valid written signature .”
The end .
The Czar was right . Other lawyers were wrong .
Again .
Tell ’ em , Johnny : Nobody is as smart as the guy . . . and I ’ m the guy .
It gets worse for DentalPlans , of course .
After doing what they ought not do , they did what they probably shouldn ’ t have done and raised the critical merits issue in the case before certification . That , of course , lead to an easy certification decision in the Plaintiff ’ s favor :
“ The primary issue in this case that might require individual analysis is whether the conversations each individual member of the class had with a DentalPlans representative contained sufficient language to give rise to a ‘ clear and conspicuous ’ explanation of the nature of the prerecorded calls as required for prior express written consent .”
Yeah . . . that ’ s a common issue , folks . And it is the primary issue . And DentalPlans lost it . So now everyone in the class knows they won a massively important issue . One-way intervention problems everywhere . . . but too late ! More importantly , the class was certified — 57,240 members who received prerecorded winbacks after signing up over the phone .
My goodness .
Plaintiff received 10 calls . Assuming all the other class members received the same number , there are 572,400 calls at issue here . That ’ s minimum damages of $ 286,200,000 .
All because they obtained oral recorded consent .
Brutal . Absolutely brutal .
But I am glad all of this happened because now I can — once again — say I was right , and also because we now have a clear rule on an issue of wide impact and at a very important time , which is arguably more important .
So repeat after me :
• You cannot obtain TCPA-valid express written consent orally from a consumer during an inbound call .
• You cannot obtain TCPA-valid express written consent orally from a consumer during an inbound call .
• You cannot obtain TCPA-valid express written consent orally from a consumer during an inbound call .
• You cannot obtain TCPA-valid express written consent orally from a consumer during an inbound call .
• You cannot obtain TCPA-valid express written consent orally from a consumer during an inbound call .
But there are ways to do it legally . You can use the transactional message exception ( that I invented ) to send an SMS message containing the required disclosures . You can have the consumer view terms on a website while “ signing ” the agreement . You can send snail mail . You can drive to an app . Lots of things can be done — in theory , and with much precaution . But you need a really good lawyer to help you implement these processes in a manner that will pass muster . ( Do not try to set this up without legal counsel . I am telling you , big mistake . A lot of fine lines here .)
So now that you ’ ve been reminded of just how important it is to pay attention to pretty much every syllable I speak , you might want to sign up for the Law Conference of Champions where we will be giving you about 8 hours of stuff you definitely need to know about the TCPA , mini-TCPAs , data privacy , AI , and other critical developments in the marketing and lead generations space :
GET YOUR TICKETS TODAY !
Or , you know , be stubborn and don ’ t come .
TROUTMANAMIN . COM • 13