TCPA Defense

You sent a text message. Now you have a lawsuit.

The Telephone Consumer Protection Act was written to stop robocalls and spam. What it has become, in the hands of a plaintiff's bar that has turned consumer protection litigation into an industry, is a machine for extracting settlements from businesses that sent one text too early in the morning.

The firms leading this charge are based primarily in Florida and California. The Law Offices of Jibrael S. Hindi, based in Fort Lauderdale, has been among the most frequent filers of TCPA quiet hours lawsuits, targeting retailers and small businesses nationwide with class actions over texts sent before 8 a.m. or after 9 p.m. Anthony Paronich — known in TCPA defense circles as the "Wolf" — has built a reputation as a ruthless litigator and shrewd negotiator who manages a high volume of cases while remaining willing to take them all the way to verdict. Avi Kaufman of Kaufman P.A. is well-funded, aggressive, and has generated tens of millions in fees pursuing TCPA class actions against businesses across multiple industries, with a particular focus on real estate and insurance. Mike Greenwald of Greenwald Davidson Radbil has long been considered one of the most gifted plaintiff's class action lawyers in the space. Scott Edelsberg, another Florida-based plaintiff's attorney, has filed hundreds of consumer protection class actions and is a persistent presence in TCPA litigation. These firms know the statute cold, they know how to find vulnerable defendants, and they have done this hundreds of times before.

If you have received a demand letter or a complaint from one of these firms, your instinct may be to settle and make it go away. That instinct is understandable. It is also often wrong.

What the TCPA Actually Requires

The TCPA prohibits telephone solicitations to residential subscribers before 8 a.m. or after 9 p.m. local time at the recipient's location. It also restricts the use of automated telephone dialing systems and prerecorded messages without prior express consent. Statutory damages run $500 per violation and $1,500 per willful violation — which is why plaintiffs' firms pursue these cases on a class basis. A class of 100,000 consumers receiving one non-compliant message each creates potential exposure running into the tens or hundreds of millions of dollars. The math gets large quickly.

But the statute has significant defenses built into it, and the case law has developed meaningful limits on what plaintiffs can recover and who has standing to recover it.

The Defenses That Actually Work

Consent is the most powerful defense. If the recipient gave prior express written consent to receive texts from you, many of the quiet hours claims collapse — though the plaintiff's bar is actively litigating whether general consent covers out-of-hours messages. That dispute is not settled law, and ongoing FCC proceedings may reshape it further.

Standing is the second line of attack. Courts have dismissed TCPA claims where plaintiffs admitted to purchasing multiple phones and filing suits as a business, finding that such plaintiffs had no genuine privacy interest to protect and therefore lacked both constitutional and prudential standing. Serial TCPA litigants frequently employ tactics designed to bait companies into violations — owning multiple phone numbers, providing false information when signing up on websites, and having associates in different states sign up on their behalf. Doing the homework on who is actually suing you, and how many times they have done it before, is essential.

The safe harbor provides a third defense. If a business had written do-not-call compliance procedures in place, trained its personnel, and maintained a list of numbers not to contact, a good-faith compliance error may be shielded from liability even without perfect technical compliance.

Class certification is another battlefield. TCPA class actions live and die on whether the plaintiff can certify a class. Individual issues of consent, location, and phone number type frequently defeat certification — and defeating certification often ends the case.

What This Looks Like in Practice

Most TCPA demand letters are calibrated to induce a quick settlement. The number in the letter is designed to be large enough to frighten you and small enough to seem cheaper than fighting. Sometimes that calculus is right. Often it is not.

The firms bringing these cases are experienced and aggressive. You should be too.

Jonathan Phillips defends TCPA cases across the country. He evaluates the demand, assesses the merits of the class claims, identifies the consent and standing defenses available on the specific facts, and gives you a straight answer on whether to fight or negotiate, and what a reasonable resolution looks like if negotiation is the right path. He can also help you avoid future claims through website and messaging audits to ensure appropriate consents.