Marketing Compliance and Litigation

HWG has built a powerful, interdisciplinary model that helps our clients limit and avoid exposure from the Telephone Consumer Protection Act (TCPA) and other federal laws, as well as state consumer protection laws.

With decades of TCPA and related marketing experience spanning regulatory law, compliance, and trial and appellate litigation, HWG’s team offers clients a unique, multifaceted approach to assessing and avoiding risk as well as addressing and defending alleged marketing violations.

We have successfully represented clients in the following matters:

Shaping TCPA Law

We have successfully obtained positive rulings from the FCC on a variety of TCPA-related issues, including:

• A positive ruling from the FCC on behalf of an electric utilities trade association that sought a declaratory ruling regarding application of the TCPA to calls from electric companies to customers about service issues.
• A favorable ruling from the FCC regarding a retroactive waiver on TCPA Junk Fax requirements.
• A favorable ruling from the FCC regarding mobile marketing express consent requirements.
• We successfully represented a mobile marketer at the D.C. Circuit in vacating key portions of the FCC’s 2015 TCPA Order that had dramatically increased potential liability under the TCPA.
• We represented two law professors as amici before the Supreme Court on a petition for certiorari in the PDR Network LLC v. Carlton & Harris Chiropractic junk fax case.
• We represented a group of marketers as amici before the Supreme Court in the landmark Facebook v. Duguid case, which settled a circuit split on the definition of an “autodialer” under the TCPA and diminished TCPA claims.

Employing Innovative Strategies to Minimize the Risk and Cost of TCPA Litigation

We have a successful track record of defending companies in federal TCPA class-action lawsuits, including:

• We successfully moved to dismiss a TCPA case brought by a serial plaintiff against a nationwide clothing retailer based on standing and personal jurisdiction in the Central District of California.
• We forced a TCPA class action filed against a national department store in the New Jersey Federal District Court into mandatory arbitration based on the terms and conditions in the company’s loyalty program. The plaintiff abandoned the case after the Court sent it to arbitration.
• We caused a plaintiff to withdraw a TCPA case against a national home store after filing a motion to dismiss and motion to stay in the Southern District of New York.
• We have negotiated class wide settlements approved by federal courts for de minimis per class member amounts including the approval of coupon only settlements.
• We have utilized early-stage litigation strategies like removal and standing arguments to force early stage settlement of TCPA claims.
• We have also obtained positive pre-TCPA lawsuit outcomes for clients. For example, we have convinced would-be plaintiffs not to file lawsuits and have settled multiple proposed class actions with full releases prior to plaintiffs filing a complaint. Representative clients included nationwide home improvement, clothing and sporting goods retailers, as well as fast food restaurant chains.

Building Effective Compliance Plans

We have extensive experience providing compliance advice and counseling companies regarding TCPA-impacted activities. For example:

• We designed data retention policies for text-message marketing company that balanced litigation risks under the TCPA and data breach laws.
• We audit marketing materials prior to distribution for compliance with consent and disclosure compliance.
• We design telemarketing policies and employee materials for clients seeking to improve compliance with the TCPA, do not call regulations, and other telemarketing laws.
• We advise political campaigns and advocacy organizations on TCPA compliance in grassroots organizing.
• We advise technology companies on ongoing robocalling technological requirements and regulatory developments.
• We advise clients on developing reassigned numbering solutions for companies engaged in mobile marketing.

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