Texting patients is an effective tool for med spas, but compliance is key. In this episode, attorney Christine Reilly, who leads Manatt’s consumer protection, advertising, and competition practice, breaks down what med spas and health care practices need to understand before hitting “send.” She explains why opt-in consent is critical, the key differences between marketing and informational messages, and the hidden risks that can lead to costly violations. Tune in for strategies to protect your practice, stay compliant, and confidently use text messaging to engage with patients.
Listen to the full episode using the player below, or by visiting one of the links below. Contact ByrdAdatto if you have any questions or would like to learn more.
Transcript
*The below transcript has been edited for readability.
00:01 Intro
Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real-world experiences. Creating simplicity in three, two, one.
00:14 Brad
Welcome back to another episode of the Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd.
00:20 Michael
As business attorneys for health care practices, we meet a lot of interesting people and learn their amazing stories. This season’s theme is asking for a friend. We will tackle questions that practices are sometimes afraid to ask, Brad.
00:35 Brad
And Michael, as the audience members know, this is a safe place, and everyone knows it’s not you asking the question, but only, only if you use the magic protective words, “Asking for a friend.” Now, Michael, I’m excited to bring on today’s guest, and she’s joining us all the way from sunny California. But before we bring her on, I need to ask you an important question. Is it true that ketchup is a gateway condiment?
00:59 Michael
Oh, man. Well, I think my position on condiments is well-established from prior episodes, Brad. They are pure evil. Ketchup, I will say, is the least offensive of the condiments. I’m not sure it’s a gateway condiment. I mean, gateway implies that there’s an addictive nature to it, and there’s nothing addictive about condiments.
01:24 Brad
All right. Audience members, for those that don’t remember, Michael’s idea of living dangerously is eating a sandwich with nothing on it but meat and bread.
01:31 Michael
That’s just being smart.
01:33 Brad
Meanwhile, I’m over here like high risk. I’ll throw spicy mustard on it and all the veggies you can shove on it. You know, that’s, that’s living life crazy.
01:42 Michael
Well, vegetables are not offensive, Brad. Your problem is the spicy mustard, among many problems, but…
01:47 Brad
All right. Now, it’s well-established how much you hate mayo, um, but I think I found your anti-Doppler. Did you hear about the Spanish cafe that went up in flames, literally, because a customer was denied extra mayo?
02:00 Michael
Uh, no. I have not heard this story, Brad.
02:02 Brad
Yeah, true story. Guy walks in, asks for mayo, and is told that they’re fresh out of mayo, so the customer leaves and, he’s so mad, he comes back with a bottle of gasoline and sets it on the counter and sets it on fire just for being denied those extra packets of mayo.
02:20 Michael
Well, I’ve told you before, and on this episode, that mayo is Satan’s spawn. In fact, I think deviled eggs should just be called devil’s eggs. Nothing good comes out of messing with mayo. That’s, that’s the lesson of the story I’m hearing.
02:35 Brad
I knew you’d appreciate this, Michael. If you ever got mayo on your sandwich, though, would you get mad enough to burn down a business?
02:43 Michael
Well, probably the proper question, channeling my daughter, is, uh, you should say, “Would I rather burn down a business and face the consequences, or eat the sandwich with mayo?”
02:54 Brad
All right.
02:55 Michael
My daughter poses these questions to me all the time to, you know, compare some horrific outcome with what I would do versus eating mayo.
03:04 Brad
All right. But here’s the legal twist. This is where it gets funny. Hellmann’s, the, the mayo giant who you probably hate, stepped in and offered to pay for all the cafe repairs and promised that the cafe would never be, quote, unquote, “Mayo naked again.” And I’m sure it makes you so happy to learn that they will never be, quote, unquote, “Mayo naked again.” And it sounds like, you know, a happy ending for everyone in the cafe, of course, except for the arsonist.
03:28 Michael
And for me.
03:29 Brad
Yep.
03:29 Michael
Note to self, do not go to the Spanish cafe.
03:31 Brad
Yes.
03:32 Michael
All right let’s bring our guest on. It’s time to get into some non-condiment talk. Joining us today, another attorney, Christine Riley. She is a lawyer with Manatt, based in their LA office, Los Angeles office. She heads the firm’s consumer protection, advertising, and competition practice. Christine defends companies in consumer class actions and other major civil litigation in various areas, including consumer protection, unfair competition, and false and deceptive advertising. Christine is known as one of the nation’s leading Telephone Consumer Protection Act attorneys, and, or as you have on your personalized license plates, TCPA.
04:17 Michael
Yeah. Christine’s legal acumen has earned her multiple awards and recognitions, including being named by the Daily Journal as one of California’s top 100 lawyers in 2024 and 2025. She’s featured on Los Angeles Business Journal’s Top 100 Lawyers and Women of Influence 2024 list. Um, school, UC California at Berkeley – Boalt Hall School of Law, and then undergrad at Cornell University, School of Industrial and Labor Relations. Christine, welcome. So glad you joined us today.
04:54 Christine
Well, thank you all for having me. I’m going to have to say that it’s ketchup all the way, guys and mayo only in limited circumstances.
05:03 Brad
There you go.
05:03 Christine
But definitely no burning down the house.
05:05 Brad
All right. Well, Christine, you actually answered one of the first important questions, is your take on condiments. So I was glad to hear that right away you were able to jump in with us and realize that ketchup is awesome and that mayo is okay. Have you ever loved it that much that you would set some place on fire if they didn’t give it to you, or, if they failed to give you your ketchup?
05:30 Christine
I don’t think I’d ever set anything on fire, but I will tell you one thing. If I don’t have ketchup with my burger, we’re going to have a serious issue. I need, like, five or six packs of ketchup to make it through a burger.
05:42 Michael
Yeah. Somewhere between normal and burning a house or restaurant down. It’s important, but maybe not arson important.
05:53 Christine
Correct. Like, not worth going to prison or having a criminal record for but definitely above simply upset.
06:02 Michael
Mm-hmm. Okay. Fair, fair. Duly noted. That’s probably where I would fall on my position, just a little slightly different position. I’m not going to go criminal on it.
06:13 Brad
There you go.
06:13 Michael
Yeah. All right. Well, let’s jump in. I’d love, uh, for you to help kind of introduce yourself to our audience. Any gaps that I didn’t catch in the introduction, and, we would just love to learn a little bit more about you.
06:28 Christine
Sure. Well, you did such a great job with introducing me that I maybe only have a couple of things to add. Brad, you’re part of this intro. So, here’s something sort of interesting, and I thought I had a really interesting point until I read your bio, Brad. I started working in the legal field when I was 16.
00:06:50 Christine
I started working with my cousin, who had her own law firm. She did a lot of real estate, divorce, all sorts of things, at a local level in New York. And by the way, I, I consider New York and Los Angeles to be both of my homes, since I’m from New York originally and now I’m based in California. And I thought I had this really unique story, because I rarely meet someone that started in the legal field as early as I did. And then I read your bio, Brad, and yours says sixth grade. Sixth grade? I mean, I can’t even… I can’t beat that. And I thought 16 was young, but sixth grade, you got me beat there.
07:33 Brad
Well, in your defense, which I will defend you, sixth grade is when I had the vision of representing people. I didn’t actually start doing any of the heavy lifting till later, so you kind of beat me, at least from that perspective.
07:45 Christine
Okay. I’ll take that. I’ll take that. Something else, um, interesting is, you know, I’m an expert in many different areas. One is TCPA, another is all sorts of advertised pricing, subscriptions, automatic renewals, anything in the consumer advertising space. But one interesting tidbit about me that you probably don’t know is my very first case on TCPA went all the way up to the U.S. Supreme Court.
Wow. That is awesome.
08:16 Christine
I mean, what are the chances?
08:19 Michael
Well, I know they’re remote, because I still haven’t had that happen.
08:25 Christine
And it rarely happens to us litigators, that you have a case that goes up to the U.S. Supreme Court. And my very first TCPA case did exactly that. And I still remember the day I saw that complaint. It was a case from an advertising agency and involved one single text message that was on behalf of the U.S. Navy, sent to one individual, one message that was litigated for seven years, all the way up to the Supreme Court.
08:58 Michael
Wow. Now, did you get to participate in the Supreme Court argument, or was it handed off to appellate lawyers along the way?
09:08 Christine
Handed off to the Supreme Court specialist.
09:10 Michael
Yeah. Yeah.
09:11 Christine
I know where I’m needed, and I know when there are better experts out there that appear in front of the Supreme Court all the time. But I did, Michael, I did have the ability to sit in the courtroom and watch the argument happening real time, and that was surreal.
09:30 Michael
Wow.
09:30 Christine
To listen to your case being heard and discussed, you know, the years of blood, sweat, and tears on a case, to hear the justices talk about it was exhilarating.
09:42 Michael
That’s amazing. That’s so cool.
09:43 Brad
I think she’s winning again.
09:44 Michael
Yeah.
09:45 Brad
Yeah, it went from…
09:46 Michael
It’s not, it’s not a competition.
09:47 Brad
It’s not a competition.
09:48 Michael
Unless I’m winning, and then it is.
09:49 Brad
Yeah. Well, we just cut that. Everything she just said, can I just cut? Because I want us to be winning again. Because she sounds like she’s winning really big time. Well, okay, so now you had this fabulous case go all the way to the Supreme Court. Was that with the firm you’re with now? At least tell us about the firm you’re with now, and what are you guys up to?
10:06 Christine
Yeah. That was with my prior firm. I’m now with Manatt, Phelps & Phillips, and this is now my longest-held position. I have been with Manatt for almost 11 years.
10:19 Michael
Amazing.
10:19 Christine
So longest position to date. And something interesting about our firm, we don’t consider ourselves a law firm. We are a professional services firm. And what I mean by that is we have about 450 attorneys and consultants across various different offices. So we have about six offices in California alone, and then we have offices in the major cities like New York, DC, Chicago, Boston.
11:01 Michael
Oh, okay.
11:02 Brad
All right.
11:06 Christine
So we do a lot of things. Manatt, we’re a full-service, uh, professional services firm, but we are especially well-versed in health care, advertising, privacy, entertainment, real estate, and I can go on. About half of our staff and experts are consultants. And so our health care practice, for example, has pretty much a split between legal and consultants who work on all sorts of very interesting things like strategy, business projects, all things consultant-wise. So that’s something a little bit different about who we are, and kind of where we’re going, ’cause we’re looking to put that model across the entire firm-
11:54 Michael
That’s really interesting.
11:54 Christine
… which works really great in health care.
11:56 Michael
Yeah. That’s cool. Well, thanks for sharing that. And I want to get into our… you may have heard at the beginning, we talk about our theme for the season, asking for a friend. And so we’ve been bringing guests on all season to pose questions, kind of in a Dear Abby style of questions that our clients are sometimes afraid to ask or embarrassed to ask, and, so we disguise it, as Brad mentioned, through the “asking for a friend” as a safe space. So, um, here’s the question we’ll start our conversation with today. A med spa owner bought a new, CRM software program and is considering a new marketing strategy, being pushed via text to all of their current and potential patients they have in their system. So, asking for a friend, is she allowed to text patients as a part of her marketing strategy?
12:57 Christine
By the way, I love that you started that out with Dear Abby.
13:00 Michael
Yeah.
13:00 Christine
I don’t know if we’re aging ourselves, but Dear Abby is legendary.
13:05 Michael
Yeah.
13:06 Christine
Yeah.
13:07 Michael
Hopefully the audience can connect with that.
13:09 Christine
Yes. I hope so. I hope so. Dear Abby is legendary. That is a really great question and packed with all sorts of fun and interesting issues. The first thing I’ll say about this question is anything with text message marketing is, you know, potentially full of landmines.
13:33 Michael
Mm.
13:33 Christine
And it sounds like it’s something easy, right? You have a list of potential customers, and you’ve gotten them from different places. You want to reach out to them. You’re thinking, “Oh, well, these people want to hear from us. Maybe we have a special going. There’s holidays are coming up.”
13:51 Michael
Mm-hmm.
13:52 Christine
“Let me just reach out to them.” And what about text messaging? Because a text message is so easy and such an effective method of communication. So this is where the Telephone Consumer Protection Act really comes into play, and this is an area that I started working in, as I said, my first Supreme Court case back in 2010, and I’ve been working this space for well over 15 years, which is hard to believe.
14:20 Michael
Mm.
14:21 Christine
But when you’re looking at a text message campaign, you know, there’s all sort of rules. The federal TCPA and there’s mini state TCPAs, and there’s a lot to unpack here, but the two main provisions that we always think about are whether the text messages are automated and whether you’re texting someone on a do not call list. And if you are, do you have proper permission? So the place to always start when we look at text messaging is, are these opt-ins? Do we have consents to send text messages? I, as a TCPA lawyer, would have a whole number of questions for this friend, one of them being, where did you get these phone numbers? How did you obtain them? Did you give them any disclosures when you took their phone numbers? Was there a form that they opted in to get text message marketing? What kind of messages do you wanna send? What’s an example of those messages? So those are the places that I would start in looking at this issue. And of course, in the TCPA world, nothing is easy or straightforward. There is all sorts of complications… when it comes to health care and TCPA.
15:39 Christine
I’ve always said, and I’ll still, I’ll always say this, one of the most complex areas in TCPA is the intersection of health care and TCPA. Why is that? Because health care messages have their own regulations that are very, very intricate, like HIPAA. And so when you try to marry a whole body of law in health care with a telephonic communications law, it could be very messy. Lots of exemptions, potential permissions, and I’m happy to get into some of those, but it is a, potentially a trap for the weary if you are not looking at your campaign and setting it up properly.
16:24 Michael
So fascinating. For our audience who you know, probably, is not very well-versed on these issues, and probably why, you know, they are afraid to ask sometimes, are there some general demarcations of things that kind of create, you know, trouble versus others? So a marketing-type message versus an appointment-type message and those types of things.
16:52 Christine
Absolutely. Um, absolutely. So in general, if you’re sending messages that are transactional in nature or informational, such as a customer sets an appointment and you send them an appointment reminder, those messages, in general, are less risky than if you are sending someone marketing text messages. You know, like 20% off of some type of service.
17:20 Michael
Mm-hmm.
17:21 Christine
A lot of the, the lawsuits we see, the class actions in this space, tend to deal with marketing messages. That’s most common.
17:31 Michael
Mm-hmm.
17:32 Christine
But the one thing to remember about TCPA is that any kind of automated text message potentially requires consent under the TCPA. So even an informational message, an appointment message, can still potentially be a violation. But when it comes to marketing, it makes a big difference because if it’s a marketing communication, then there is a certain type of consent that’s required that has certain disclosures that need to be obtained prior to sending that message. So there’s a big difference between informational messages and marketing messages.
18:12 Christine
And the line between what’s marketing and what’s informational is not often very clear. The one benchmark I always give our clients is that if it is not truly informational, truly transactional, then it is marketing under TCPA. So even if your message has an informational component, but it also has maybe a sales or marketing component as well, it’s marketing for purposes of the TCPA. And one other thing to think about, not just between informational or marketing, is where are these numbers coming from? Are these lists of phone numbers that were bought, for example, because you’re looking to expand the business and get new clients? Or are these phone numbers that you received from current customers or past customers? That also makes a difference.
19:07 Michael
Wow. Okay, that’s great. I have one more, and I’ll hand it off to you. Just real quick is a lot of the questions I get sometimes, and just to touch on the nuance between, you know, can I have them? You know, do I need to have them opt in, or can I just have a button that allows them to opt out? And is there a legal difference between those two paths?
19:33 Christine
So in general, you’re going to want to have people that are provided some type of disclosure on how you’re going to use their number. So you’re really looking at more of an opt-in rather than an opt-out situation, particularly when it comes to risk under the TCPA. And, and let me just kind of give you a little bit of background on what the risk is, to put this in better perspective. The TCPA has some of the worst statutory damages that are out there. A single text message that is sent, and it’s a strict liability statute, if it’s a violation of the TCPA, is a minimum of $500 per text message. And if the violation is willful, it could be trebled up to three times. In other words, $1,500 per text message.
20:27 Michael
Can I charge Brad $1,500 for each text he sends me?
20:32 Christine
I think you should start keeping track of them.
20:35 Michael
That’s crazy. Okay, sorry, I interrupted you.
20:36 Christine
Yeah, it is crazy.
20:37 Michael
Yeah.
20:38 Christine
I mean, you don’t need to be very good at math to just think about how many messages do you send? You send 2,000 messages, you’re looking at a million dollars of potential liability. I mean, the math is crazy in this space, and that is the reason why, you know, people like me have been working in this space for so long, and why the plaintiffs’ law firms and the plaintiffs continue to file these cases. They are really a cash cow for the plaintiffs’ bar and for the plaintiffs that file them. They’re very, very popular.
21:12 Brad
Yeah, and that’s a great segue, for the audience members to understand, because a lot of times when they hear federal law, they think, “Well, I guess the federal government will be the one enforcing it.” But, um, could you kind of double-click on, like, how, how can someone who’s not the government enforce this law?
21:29 Christine
So the most common enforcement isn’t the federal government. You’re rarely going to see the FCC that regulates and enforces the TCPA file anything. And if they do file something, then you have done a whole bunch of other bad stuff that got the attention of the regulators. What you’re more likely to see is a class action lawsuit. And the recent statistics are kind of interesting, because about 78% of TCPA cases are class actions. You may say, “Well, why? Why are they class actions?” Very easy. Because class actions are bigger lawsuits. There’s the threat that someone is not just representing themselves, but representing a group of other consumers that are in a similar situation. So the risk to the company is greater. And then, of course, the plaintiff lawyers argue, “Well, if you want to settle this case, this is a class action. And so I’m not going to settle for $500 multiplied by the number of text messages. I’m going to want a lot more money because I’m giving up my class action or a potential
22:38 Christine
class action.” So the class action vehicle is what you’re more likely to see, and those are the types of suits that come across our desk every single day. We have a whole team here at Manatt dedicated to defending TCPA class actions. A lot of times you see the same people over and over. You know, we call them serial plaintiffs or professional plaintiffs, because I’m convinced that some of these folks don’t actually have a job other than suing companies.
23:08 Brad
That’s crazy. And, well, you said this actually in the beginning when you, when you started talking about the federal law, but there are certain states that have their own kind of mini version of the TCPA. And I know that for audience members may have been hearing, because it seemed to make nationally news, that Texas passed their version of that. So maybe if you could kind of lean into that new Texas bill and understand, you know, how does this impact, number one, I guess, Texas, um, you know, when you’re communicating with patients in Texas, but how do other states just start viewing that? How do they start viewing it?
24:07 Christine
So what happens is you have a whole complex web of different laws throughout the country, which means if you are making outreach to different states, you have to have a compliance program in place to know places that you can call, when you can call, and make sure you’re not violating other state laws. So Texas is a great example. You know, Texas is one of many laws that have changed over the course of the years. Texas came out with new requirements. You used to not be able to file consumer class actions without going through the Texas AG and other kind of hurdles, but not anymore. Now, if you are in Texas and you get text messages, you have the ability to file a private class action lawsuit and they specifically cover text messages. It used to just be voice calls.
25:02 Brad
So if I try to block him and he texts me anyway, I should be suing him? Is that what you’re telling me?
25:10 Christine
I think you should sue him anyway.
25:11 Brad
Yeah.
25:11 Michael
Oh my God.
25:12 Brad
I knew we were good friends for a reason.
25:14 Michael
You, you picked up the energy pretty quickly.
25:20 Christine
Quit getting them, Brad.
25:21 Christine
All those text messages.
25:22 Brad
Yeah I mean you think about these, uh, you know, we’ll stay in the medical world. Like, they go to a conference and they, they may have gotten a list of all the different people who attended, and they start texting them all the different information out there about all the different marketing things, and not even realizing that they might be sending stuff to people in California or Texas or wherever state, and they’re not even based out of there, and they’re not following those rules.
25:46 Christine
That is always a danger. And anytime someone says, “I got a list,” you know, from someplace always makes me nervous, because where did that list come from? What are the expectations of the folks on that list?
26:00 Brad
Mm-hmm.
26:00 Christine
Are they expecting to hear from you? Do you have a relationship with them? Some of the hardest cases we defend are the ones where there’s no relationship between the person that’s texted and the company, such that when that person gets a text mess- message, they say, “Who are you, and why are you texting me? I don’t know who you are.” You know, those, those are particularly tough cases. You know, I’m going to bring this back to this idea of consent, because I think this is, you know, a theme here under TCPA, and it comes in with Texas too. So, one of the new things in Texas is that if you are sending telephone solicitations, Texas says you have to register as a telemarketer. And that has caused quite a stir, right? Because do I need to register now? There’s all sorts of requirements to register, giving information about your business and the officers. But something good just happened, and it just happened two days ago.
27:00 Brad
Ooh.
27:00 Christine
So, this is very well timed.
27:01 Brad
Breaking news.
27:02 Christine
It’s breaking news. This is breaking news, everybody. So, there was an e-commerce group that filed an action along with a couple of other groups, and it was about the registration requirement. They wanted injunctive relief to prevent the Texas attorney general from enforcing the registration requirement if the companies had opt-in marketing text programs. In other words, if you had opted in to get text messages, they wanted a ruling that says they don’t need to register as a telemarketer in Texas. Well, great news, the AG did respond and say, “I actually, we don’t think that opted-in text marketing programs are covered by our new registration rules.” And just a day ago, the court actually dismissed that injunctive relief lawsuit, finding the issue moot. So the lesson here, opt-in text message marketing is where you want to be, not just for Texas and registration requirements, but because the TCPA generally requires consent to send messages. So if that’s not a reason to get consent for your text message programs, I don’t know what is.
28:26 Michael
So powerful.
28:27 Brad
Yeah.
28:27 Michael
And we’ve used up all of our time, and I just love the drop mic you just gave us there at the end for our audience. It’s so cool. Christine, thank you so much for joining us on The Legal 123s with ByrdAdatto and, we’re grateful for your time today and for you. We’ll go to break right now and maybe have a quick wrap-up when we get back.
28:51 Christine
Thank you both.
28:52 Access+
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29:26 Brad
Well, welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad, with my co-host, Michael Byrd. Now, Michael, for those who don’t remember, the season theme is asking for a friend. And we had just had a great conversation with Christine on using the TCPA, and she did really drop a, a mic at the very end of it, so it’s almost like we feel silly doing a legal wrap-up. The only thing, obviously she said it, but we will remind you, you know, if you do have your HIPAA forms, that doesn’t always protect you, so make sure you go back through and figure out, is it TCPA-compliant also? So when you’re gathering that information, right, when you’re onboarding that patient for the first time, make sure you have everything filled out correctly if you plan on marketing to your patients via texting. But unfortunately, audience members, that is all the time we have. We will be back next Wednesday when we continue asking for a friend, when we bring on Kaitlin Upchurch, and she comes in and answers the question, does my medical practice need cybersecurity?
30:21 Brad
Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five-star rating, and share with your friends.
30:29 Michael
You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com.
30:35 Outro ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own, and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.
