What about all the businesses we don't hear about because they aren't getting sued?

We normally only hear about the compliance horror-stories.  Each week for the last several months, there has consistently been some brand in the news who was subjected to paying a large settlement or telemarketing fines.  Sellers, call centers, and even a small software dialer vendor, were all recent targets in significant lawsuits.  Companies who avoid the big lawsuits and fines don't normally make headlines in compliance articles.  However, to their credit, most brands in our space have avoided any significant trouble by adapting to rule changes and following basic telemarketing compliance principles.

Even in this highly regulated environment, the majority of our firm's clients appear to be prosperous, able to handle whatever compliance hurdles consumers and government throw their way.  While most of our clients receive the occasionally demand letter or subpoena, most of them have avoided being named in any significant class action or regulatory case.  How is this so?  The vast majority of federal and state telemarketing cases are filed based upon one of the following mistakes, all of which are avoidable: (1) autodialing cell phones without consent, (2) delivering prerecorded messages without consent, (3) marketing to individuals on the DNC lists without consent or EBR, and (4) failing to honor any opt out.  Additionally, while somewhat harder to consistently avoid, sales misrepresentations are also a leading cause of FTC and state regulatory action.

Most brands who have avoided trouble, seem to be doing at least the following:

• Using autodialers (ATDS) and prerecorded messages only with well documented, brand-specific consent;
• For those without such consent, they aggressively scrub out wireless numbers and document their related safe harbor qualifications;
• Scrubbing out numbers on the national and 12 state DNC lists, except when they have consent or an appropriate established business relationship (EBR);
• For brands that have some exemption from DNC and ATDS rules, they carefully research and document the same and obtain a formal legal opinion on the exemption before relying on it;
• Having solid policies and procedures in place to recognize and honor all out outs (internal DNC requests);
• Remaining constantly vigilant regarding consumer complaints and fixing errors immediately when discovered, especially for misrepresentation and refund related complaints;
• Performing some sort of professional TCPA litigator scrub - at least 1/3 of all TCPA cases are filed by someone who filed one before;
• Periodically performing an in-house or 3rd party telemarketing compliance audit of all major compliance areas of the business.  Over time, laws change, and sometimes even our own practices change without us noticing; and
• Auditing their vendors, instead of blindly trusting that they are in compliance.

European Union GDPR

On May 25, 2018, the EU's General Data Protection Regulation (GDPR) will start to be enforced. We will provide more information about the GDPR as that date approaches, but any company that does business into or out of the EU should review the changes that will take place to ensure they are prepared.