Posted: December 2, 2015
When I became a parent, the way I evaluated activities that up until then seemed harmless fun, underwent an immense shift. As a mom, I had to look at everything from a different perspective – was it dangerous, could harm come to my children, could other kids be hurt, etc. Basically, instead of saying, “That sounds great. Have fun!” I had to look at all possible adventures from the point of “What’s the worst that could happen?” As my daughter once put it “You suck the fun out of everything.” Oh well … part of the job description.
As a compliance consulting firm, we understand being a Compliance Officer in a customer-facing company is a lot like that.
Contacting consumers you think might be interested with your latest and greatest product/service via the various communication channels available today is no longer just a great idea. If not monitored for TCPA adherence and other compliance aspects, consumer contact activities could easily be one of the most expensive ideas that might cost you and/or your company dearly.
So, what is the worst that can happen? Here are some examples that are perhaps not the worst thing that can happen but are still pretty damaging.
Mr. Luna filed a TCPA complaint stating he received unwanted texts from a nightclub. The club was able to prove in federal court that its text messages were sent as a result of human intervention, not an ATDS. However, the plaintiff appealed.
The case has recently been settled for an undisclosed amount. In other words, even if you abide by the rules, as a federal court had ruled in this case, a class action case can be so costly and drawn- out that parties may decide it is less expensive to settle. (Luna v. Shac)
Western Union has just agreed to a $8.5 million settlement after having been accused of sending consumers unsolicited texts. Court documents say this is the largest per-class-member payout ever reached. The estimate is that after attorneys’ fees and expenses are deducted, each class member, who submits a valid claim, could receive up to $650 from the settlement fund. (Douglas v. The Western Union Company)
Fax. Yes, faxes.
A realty firm accused Burger King of sending unsolicited faxes without the legally required opt-out notice advertising its delivery service. The Court approved a settlement of up to $8.5 million. (Jay Clogg Realty v. Burger King)
A lumber and hardware store alleged Interline sent unsolicited fax ads as well as ads that failed to comply with the TCPA’s opt-out notice requirements. The Court approved a final settlement of $40 million. (Craftwood Lumber v. Interline)
A distributor of diabetic testing supplies faxed announcements about a new Medicare reimbursement policy to its customers. A well-known TCPA plaintiff sued the company and its CEO under the TCPA. The CEO had been under the impression, the announcements would be mailed. (Physicians Healthsource v. Doctor Diabetic Supply). The petition to hold defendant’s CEO personally liable was dismissed.
Ms. Stone called a hotel’s toll-free reservations number and claims she was never notified the call may be recorded. She filed a class action lawsuit stating this failure to disclose that the call may be recorded allegedly violated California’s Privacy Act. The case settled for $1.5 million. (Stone v. Howard Johnson International, Inc.)
Therefore, when a member of your marketing team, sales department, or anybody else, comes up with a great idea to call/text/fax clients or potential clients to promote your company’s product/service, please remember, it’s all fun and games until somebody pokes an eye out – or does not have the legally required compliance stance in place.
We understand the various and evolving requirements impacting your consumer contact activities can be difficult to navigate and to accommodate into existing compliance efforts. For more information regarding the impact of the TCPA or any of the state or federal consumer contact requirements, please reach out to firstname.lastname@example.org.
The information on this website is not an alternative to legal advice from your attorney or other professional legal services provider.
Manuela Phillips-Gann is a Legal Research Analyst at CompliancePoint with a strong focus on the Telephone Consumer Protection Act. She researches and tracks the many and frequently changing regulations of interest to CompliancePoint and its clients. Manuela has worked for a wide variety of organizations in the USA and Germany, including the German Cancer Research Center, SAP, and the state of Washington. Manuela earned her translator certification for the English language, specialty in Business, from the State Examination Authority for Translators and Interpreters attached to the Technical University Darmstadt, Germany. She was also sworn in as a court-approved document translator for the district court Heidelberg, Baden-Wuerttemberg, Germany.