The Telephone Consumer Protection Act, with its lofty per violation statutory damages provision, has led many a defendant to settle early.
But Ian Ballon of Greenberg Traurig has fought and won Telephone Consumer Protection Act class actions for clients including Yahoo, Crunch Gym and Taco Bell, rather than settling. The Recorder caught up with Ballon, being recognized this year as a “Groundbreaker” for his TCPA defense work, to talk about what’s on the horizon for privacy lawyers.
You’ve scored litigation wins for multiple clients facing claims under the TCPA. What makes companies decide to fight and win rather than settle these cases?
In putative data privacy class action suits, including TCPA cases, I encourage clients to fight and win if we can because plaintiffs’ counsel remember those companies that are quick to settle and will sue them over and over again. There are, of course, sometimes good reasons to settle unrelated to the merits of a case. But when a client is willing to fight and win, the company develops a reputation that can save it time and expense down the road.
I think of you as a privacy expert. Some people lump TCPA cases in with other privacy claims, but others think of them as their own separate species. How do you see them and what’s your approach when a client comes to you complaint-in-hand?
My practice is focused on technology litigation. I started out in the 1980s defending software copyright and trade secret litigation. After I gave a speech to the 1995 ABA Annual meeting on “Internet Law” at a time when there wasn’t much law to speak of, I was convinced by Ray Ocampo, who at the time was the general counsel of Oracle, to write a treatise on internet law.
Since that time, my practice has been focused on internet (and more recently mobile-related) litigation, including the defense of data privacy, security breach and TCPA class action suits. In the last decade, I won the first cases applying the CAN-SPAM Act and California anti-phishing statute to social networks (for MySpace) — establishing precedents that were built upon by Facebook and others.
TCPA cases are similar to privacy and cybersecurity putative class action suits in that the cases follow similar lifecycles. We try to defeat the claims based on standing, failure to state a claim or on summary judgment. I started handling TCPA cases after winning an early case for Taco Bell where we challenged plaintiff’s assertion that we used an automatic telephone dialing system, or ATDS. I have won a number of cases since that time on that same issue.
Litigating whether an ATDS is used requires you to delve deeply into the technology, which is the same thing we do to win software copyright, trade secret or patent cases and the way we often win data privacy and cybersecurity putative class action suits where a dispute turns on what actually happened from a technical perspective. In all of these cases, I try to translate complex technologies into human terms that a judge and jury can understand.
A prospective client with a crisis calls and asks why you and your team should be retained. What is your answer?
We are very creative and we like to win. In addition to my “day job” as a litigator, I update my treatise, E-Commerce and Internet Law 2d edition (Thomson Reuters West, www.ianballon.net) every year, which means that I actually read and analyze hundreds of cases each year in addition to fighting and winning in court, which gives me deep insight into trends in the law.
I know and understand what the key circuit splits are under different federal statutes or rules of procedure, the arguments that are starting to gain traction and the direction the law is moving. This allows me to be very creative in identifying potential arguments or arguing by analogy from other areas of law where parties have grappled with similar technologies. That is, for example, how we started winning TCPA cases back in 2010 by focusing on the underlying technology and challenging the assumption that every text message came from an ATDS back in 2010. It also means that we can be very efficient because we don’t need to do as much research or analysis as other firms — chances are the key cases are already in my five-volume treatise.
I have a dedicated group of lawyers in our Northern California offices, in Los Angeles and in New York, who love technology cases, love working for cool clients and get excited about the opportunity to make new law (or avoid new law from being made, if the outcome would be unhelpful).
We also use data analytics in every case we handle to effectively plan our strategy.
Some people look at litigation as a war. I see it as a chess game where we need to be thinking several steps ahead to anticipate what the other side may do in response to alternative approaches. I also like to give clients options at every stage in a case so that if business priorities change, we can be nimble in adjusting our approach to the case.
The most enjoyable cases for me and my team are ones where we are closely partnering with in-house counsel. In-house lawyers know their clients well and are sensitive to the factual and legal issues of greatest concern to a company. When we partner together, it is always a very rewarding experience.
Who is a litigator outside your own firm that you admire and why?
There are many lawyers who I respect. My team and I were co-counsel on a case with Bob Van Nest and his team and I appreciate the way he creatively approaches legal issues. I also have great respect for Mike Rhodes of Cooley, who I have worked with on cases where we represented different parties sued by the same plaintiff.
One of the great things about technology litigation, particularly in the Bay Area, is that you are typically litigating with or against smart, creative lawyers who are also for the most part genuinely nice people.