Op-Ed: Tips for Camp Lejeune Attorneys to Mitigate TCPA Suit Risks

Published by Law360.com on September 25, 2023  

For over three decades beginning in the 1950s, chemicals from leaking underground storage tanks, industrial area spills, improper waste disposal and a nearby dry cleaner contaminated the drinking water at Marine Corps Base Camp Lejeune with toxic chemicals.

In August 2022, the Camp Lejeune Justice Act was passed by Congress, opening the door for service members and their families to seek justice.

Today, as attorneys seek to reach veterans and their families affected by toxic water exposure at Camp Lejeune, marketing and advertising efforts by the plaintiffs bar have significantly increased.

Recently, those efforts have been met with lawsuits — Schirano v. Milberg Coleman Bryson Phillips Grossman LLC in the U.S. District Court for the Eastern District of New York, for example — filed by individuals against at least 20 law firms for alleged violations of the Telephone Consumer Protection Act, a law passed in 1991 to address telephone marketing calls and certain predatory telemarketing practices.

For attorneys seeking to retain and assist Camp Lejeune clients, it is vital to understand best practices to avoid violating this law. Knowing that your firm is doing right by our nation's heroes will not only give you peace of mind, but it could also save you from major headaches, hefty fines and scammers looking for a quick payout.

Understand the specifics of the law and its penalties.

Understanding the TCPA is the first step to ensuring your firm is operating within its guidelines. The three elements of a TCPA claim are: the defendant called a telephone number, using an automatic telephone dialing system or an artificial or prerecorded voice message, without the recipient's consent.

Besides these basic elements, there are additional regulations to be aware of:

• Telemarketing calls cannot be made before 8 a.m. or after 9 p.m. local time;
• Businesses must honor the National Do Not Call Registry;
• Businesses must maintain their own do-not-call list based on previous declines or opt-outs of calls and emails as well as honor those on the National Do Not Call Registry;
• Callers must identify themselves, on whose behalf they are calling, and a phone number or address at which the caller or entity can be reached.

The penalties for violating the TCPA are steep. In the event of a violation, a subscriber may sue for up to $500 for each violation. A violation is not the total outreach to a client, but each individual outreach such as a text or phone call.

So, if your advertising firm uses autodialed calls and/or automated texting without getting proper opt-in, you could be responsible for thousands of dollars of violations per client.

A subscriber can also seek an injunction instead of or in addition to seeking monetary compensation. In the event of a willful violation of the TCPA, a subscriber may sue for up to three times the damages, i.e., $1,500 for each violation.

Choose marketing partners carefully.

A firm and its attorneys are responsible for any marketing or advertising done in their name. To avoid violating the TCPA and risking hefty penalties, it is vital that firms have a good understanding of how their marketing vendors work, their ethical and legal guidelines, and the review process for all content.

An easy first step is to confirm that your intake vendor, lead generator or call center does not use robocallers or automated dialers that will violate TCPA regulations.

Also make sure your marketing partners review and edit the client list they are using for outreach on your campaigns every 31 days to ensure it's up-to-date, and they are not contacting people who have opted out or who have recently been added to the National Do Not Call Registry.

Next, ensure you understand the advertising process and the landing pages where clients find you. Your marketing firm should be able to tell you where each lead is coming from, and the methods used to contact that person. This will help ensure your firm is in compliance with the TCPA.

Require all marketing language be reviewed.

Before launching any marketing campaigns, obtain all materials and ensure they are reviewed for TCPA compliance. Most state legal ethics rules require firms have copies of all ads, but it is also in your interest to review the scripts used by call centers, the language for any texts or direct messages on social media, and any other relevant materials.

Encourage your vendors to use scripted, preapproved language whenever possible. Finally, confirm that the form, questionnaire or chatbot used on your landing pages has the proper language for a TCPA opt-in.

Ensure your client intake process falls within TCPA guidelines.

Once you have learned about the regulations and screened your marketer to ensure their work is done with integrity, it is time to turn your attention to recordkeeping.

Firms should keep record of all client interaction including phone calls, web forms, online chats and any other communication. This will ensure the firm can point back at a recorded history to protect from any claims against it.

Additionally, setting up two-factor authentication for your intake process is a best practice to confirm the identities of potential clients.

Rather than just a password, to access case information, a combination of factors should be used. This could include a password and a knowledge factor like a pin, or a phone ping that identifies them through a text.

Stand up to scammers.

Unfortunately, scammers are using the Camp Lejeune litigation to target law firms with alleged TCPA violations.[1] These scammers will threaten to sue a law firm over these alleged violations if they are not paid a certain amount of money, usually thousands of dollars.

By following the above steps, you will be able to refer back to your materials and record of outreach to hopefully have the matter swiftly dismissed.

The Camp Lejeune litigation will undoubtedly be one of the largest and most consequential in history. It is also an opportunity for the plaintiffs bar to demonstrate that we can come together and do right by this group of our nation's heroes.

By doing the necessary work to ensure TCPA compliance at every stage of marketing, client acquisition and case management, firms can continue their passionate advocacy and important work — while best serving their clients and being on the right side of a law that is also designed to protect them.

Libby Vish is director of mass torts at SimplyConvert.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.bbb.org/article/scams/28433-scam-alert-spot-a-phishing-scam-disguisedas-a-camp-lejeune-class-action-notice; https://medtruth.com/articles/news/camp-lejeunephishing-scam-targets-victims/.