Vicarious Liability Defense Checklist

Overview

Checklist for building a defense against vicarious TCPA liability claims when violations were committed by agents or vendors. This resource provides practical guidance for organizations facing TCPA litigation or enforcement actions.

Understanding TCPA Litigation

TCPA litigation has become one of the most active areas of consumer class action law. Annual TCPA filings exceed 4,000 federal cases, with per-violation damages of $500 to $1,500 creating massive potential exposure. Understanding the litigation landscape is critical for effective defense.

Common TCPA Claims

• Autodialer violations (47 U.S.C. 227(b)(1)(A)(iii)): Using an ATDS or prerecorded voice to call a cell phone without consent
• DNC violations (47 U.S.C. 227(c)): Calling a number on the National DNC Registry or violating company-specific DNC requests
• Prerecorded message violations: Delivering prerecorded messages to residential lines without consent
• Junk fax violations: Sending unsolicited fax advertisements
• State law claims: Violations of state mini-TCPA laws with additional penalties

Key Defense Strategies

• Consent defense: Demonstrate that proper prior express written consent was obtained for the communications at issue
• ATDS defense: Argue that your dialing technology does not meet the ATDS definition under Facebook v. Duguid
• Safe harbor defense: Show reasonable DNC compliance practices and that any violation was accidental
• Statute of limitations: Assert that claims are time-barred under the 4-year federal limitation
• Plaintiff standing: Challenge whether the plaintiff suffered concrete harm sufficient for Article III standing

Immediate Steps After Receiving a Claim

1. Notify your legal team and insurance carrier immediately
2. Issue a litigation hold to preserve all relevant documents, data, and recordings
3. Identify the plaintiff and research their litigation history
4. Gather all consent evidence for the number at issue
5. Review your calling records for the plaintiff's number
6. Identify the lead source and any applicable vendor indemnification
7. Assess your dialer technology and its ATDS classification
8. Evaluate your DNC compliance documentation

Evidence Preservation

Critical evidence to preserve in TCPA cases includes:

• Consent records (web form submissions, TrustedForm certificates, recordings)
• Call detail records showing dates, times, and numbers called
• DNC scrubbing records and internal DNC list data
• Dialer configuration and technology specifications
• Call recordings involving the plaintiff
• Training records and compliance policies in effect at the time of the calls
• Vendor agreements and lead purchase documentation

Settlement Considerations

When evaluating settlement, consider: the number of potential violations, the strength of your consent evidence, whether violations were willful (treble damages), the plaintiff's litigation history, litigation costs, insurance coverage, and the precedential impact of the case. Many individual TCPA cases settle for $1,000 to $5,000 while class actions can settle for millions.

Preventing Future Claims

After resolving a TCPA claim, conduct a post-incident review to identify what went wrong, update your compliance procedures, retrain staff, and implement additional safeguards. Document all improvements as evidence of your commitment to compliance.