Second Circuit Court Dismisses FACTA Case Under Spokeo

Spokeo related success stories have been hard to come by in 2017. However, a recent second circuit court decision in Katz v. The Donna Karan Company, LLC, et al. provided defendants in a consumer protection class action lawsuit a creative way out. Plaintiff Katz filed the class action lawsuit against the Donna Karan Company for allegedly printing receipts that showed six digits of his credit card number. Katz claimed that this put his identity at risk. The defendants filed a motion to dismiss, arguing that the plaintiff lacked standing because he had merely alleged a small procedural violation of FACTA that did not raise a concrete risk of identity theft. Read the full court opinion here. Telemarketing businesses often face similar lawsuits. Risks can be mitigated by understanding telemarketing rules, DNC list compliance, robocall laws, and overall telemarketing compliance.

Court Finds Defendants Lied to Consumers When Selling Legal Services for Mortgage Relief

A Federal Court has found that business owners Jeremy Foti and Charles Marshall “made numerous false and/or misleading material statements to consumers” during the course of business under their mortgage relief companies Brookstone Law and Advantis Law. The FTC went after the two men earlier this year, alleging that they deceived consumers out of nearly $18 million. The court has imposed monetary damages and banned the two men from any debt relief activities in the future. Read more about this case here. The FTC and the FCC often go after telemarketers as well. Any telemarketing business owner should be sure they understand FCC telemarketing laws. Consider contacting a telemarketing attorney or a TCPA attorney if you want telemarketing compliance help.

Judge Awards Attorney Fees to Defendant in Case Involving Vexatious Litigator

In the case Forto v. Capital One Bank National Association, plaintiff Simonette Forto filed a lawsuit against Capital One for alleged violations of the Fair Debt Collection Practices Act. Forto had failed to pay off a credit card debt in 2013. Capital One successfully hired a collections firm to negotiate a payment plan with Forto, but Forto provided false banking and routing information to the collections agent. When the collections firm tried calling her again to resolve the payment issue, she filed a lawsuit alleging unscrupulous debt collection practices. Both sides filed a motion to dismiss. The Judge granted the defendant's motion, finding, "defendants did nothing that even comes close to an unscrupulous debt collection practice.”  Click here to view a copy of the court's order. While the FDCP is different than the TCPA, learn what you can do to respond to a TCPA lawsuit. Be sure to contact a TCPA lawyer if you find yourself in a case against a vexatious TCPA litigator.

Judge Rules that $1.6 Billion Telemarketing Fine is Unreasonable

In Golan v. Veritas Entertainment, LLC, plaintiff Ron Golan and other class members alleged that film company Veritas Entertainment made 3.2 million illegal robocalls to consumers. The calls were made to promote the film Last Ounce of Courage, and featured a prerecorded voice message by former Arkansas Governor Mike Huckabee in which he endorsed the movie. At the statutory minimum of $500 per violation under the TCPA, the class action judgment would have been over $1.6 billion. The judge held that a judgment so large was unreasonable and decreased the amount per call to just $10. Read more here. Contact a TCPA attorney if your company is in a situation like this and needs telemarketing compliance help. Learn more about robocalling regulations.

Facebook to Implement New Standards for Advertisers

In response to criticism from regulators in several different countries, Facebook will implement new guidelines to make it more difficult for advertisers to make money on fake and sensationalized news. Content creators will have to comply with Facebook's new community standards. This could have a significant impact on the online advertising industry, which is projected to grow to $205 billion during 2017. Click here to read more.
 

FTC Bans Online Marketers from Deceiving Customers

The FTC has fined business owners Brian Bernheim and Joshua Bernheim $2.5 million dollars and prohibited them from misrepresenting the cost of any goods or services online. The two men were originally targeted by the FTC in March of this year for allegedly "offering 'free' products, without clearly disclosing that by accepting the 'free' product consumers were agreeing to be charged each month for a subscription if they did not cancel." Read more about this FTC action here.

Louisiana Telemarketing Ban Lifted

The state of emergency that had been declared in Louisiana last week due to Hurricane Harvey has been lifted. Telemarketing calls can now be made into the state. Click here to see the official announcement. Calls will still need to be made following state and federal telemarketing compliance laws, of course. Be sure to understand cell phone telemarketing laws, cell phone DNC laws, autodialer laws, and other telemarketing rules.

FTC Obtains Court Order Against Utah Company

A Utah-based company has been targeted by the FTC for allegedly providing businesses in Arizona with services that allowed them to sell deceptive, low-value money making opportunities to consumers. The FTC is claiming that these companies sold millions of dollars worth of these services to consumers who wanted to try out the opportunities. Read more here.

FTC Obtains Court Order Against Sellers of English Learning Products

The FTC has obtained a court order against a company whose telemarketers in Peru allegedly used deceptive and abusive tactics to sell English learning products to Spanish-speaking consumers in the United States. Under the order, ABC Hispana Inc., ISB Latino Inc., ABC Latina LLC, Gonzalo Ricardo Bazán Jiménez and Milagros Raquel Urmeneta are banned from telemarketing. Read more here. To avoid trouble like this company is facing, make sure you follow all telemarketing regulations and other aspects of telemarketing compliance.

Seventh Circuit Denies Class Certification in TCPA Case

Last week, the Northern District of Illinois refused to grant the lawsuit Christopher Legg et al. v. PTZ Insurance Agency LTD, et al. class status, as the majority of the members in the potential class action lawsuit could not show concrete injury. In the case, plaintiffs Christopher Legg and Page Lozano sued pet adoption service Pethealth and their subsidiary PTZ Insurance Agency for allegedly making marketing calls without the proper consent. The court granted the defendant's motion to refuse class status, ruling that each individual plaintiff would have to have their own trial to prove that they suffered concrete injury before they could be named in a class action. The full court opinion is available here. If you are a telemarketer, make sure you understand what prior express written consent means. Also, make sure you understand how to reduce telemarketing risk.

Changes to New York Call Recording Laws

On Monday, August 21st, New York Governor Andrew Cuomo signed a bill that will require all-party consent for the recording of outbound telemarketing calls. This bill will start to be enforced immediately. Prior to this, New York was only a one-party consent state for outbound telemarketing calls, but now marketers will be subject to this new regulation. Read the full text of the bill here. Learn more about outbound telemarketing compliance. There are also a number of other telemarketing rules to be aware of before you start any telemarketing campaign.

Court of Appeals Affirms that LA Lakers Basketball Team is not Entitled to TCPA Coverage

Last Wednesday, the Ninth Circuit Court of Appeals affirmed that the Los Angeles Lakers basketball franchise is not entitled to insurance coverage for violations of the TCPA. A class action lawsuit was filed against the Lakers after they allegedly sent unauthorized marketing text messages to fans that provided their phone numbers as part of an in-game promotion. The Lakers sued their insurance provider after they denied them coverage for TCPA violations. Read more about this story here. Learn more about telemarketing to cell phones.

Federal Judge in Illinois Rules that Human Call Initiator is not an ATDS

In Arora v. Transworld Systems Inc., Plaintiff Ashok Arora alleged that Transworld Systems Inc. (TSI) made 12 unsolicited calls to his cell phone using an autodialer. TSI filed a motion for summary judgement, arguing that their system requires call by call human intervention and therefore is not considered an autodialer under the TCPA. The Court granted TSI's motion. Read a copy of the opinion here. What else is important to know about autodialer compliance? What is an autodialer?

FTC Announces Refunds to Victims of Alleged Tech Support Scheme

The FTC announced today that they will be sending out notices to consumers who are eligible for a partial refund from Advanced Tech Support (ATS). According to the FTC complaint, ATS allegedly "used high-pressure sales pitches to market tech support products and services by falsely claiming that people’s computers were infected with viruses and malware." The defendants have agreed to settle with the FTC and pay out $10 million in refunds. Read the full press release here.

Court of Appeals Rules in Plaintiff's Favor in Significant Robins V. Spokeo Case

In a case that has been closely monitored by many in the direct marketing industry, the Ninth Circuit Court of Appeals stayed true to its original decision and reversed the district court's dismissal of Robins's allegations against Spokeo. This case had made it to the U.S. Supreme Court where it was remanded after a ruling was given that the 9th Circuit Court had failed to show enough evidence for concrete injury.

Robins alleged that Spokeo willfully violated the Fair Credit Reporting Act (FCRA) and caused him concrete injuries for the purposes of Article III standing, which requires that there be an injury that is "real" and not "abstract" or merely "procedural." This specific allegations in this case were that Spokeo published an inaccurate report about Robins on it's website.

On remand, the panel of the 9th Circuit Court stayed true to its original decision and held that "Robins alleged inaccuracies by Spokeo concerning his age, marital status, educational background, and employment history that could be deemed a real harm to his employment prospects." Additionally, the panel rejected Spokeo's argument that Robins's allegations of harm were "too speculative to establish a concrete injury."

This case is significant for the direct marketing industry because as the number of TCPA plaintiffs continues to increase, a favorable ruling for Spokeo would establish case precedenct that will potentially help defendants argue that plaintiffs aren't suffering from any real or concrete injury from simply receiving an unwanted phone call. Read the full opinion here. Avoid headaches like the one Spokeo is facing by investing in telemarketing compliance beforehand. Consider having a telemarketing attorney perform a telemarketing compliance audit of your company.

Fees to Access National DNC List to Increase

The fees for telemarketing businesses to access the National Do Not Call Registry will increase in FY 2018. The Do-Not-Call Registry Fee Extension Act of 2007 calls for a periodic reevaluation of the fees. In FY 2018, telemarketers will pay $62 per area code, which is an increase of $1 from FY 2017. The maximum fee for all area codes nation wide will increase from $16,714 to $17021. Telemarketers will still be able to get the data for their first five area codes for free. Read more about this change at the link below. Learn more about Do Not Call Compliance and calling cell phones on the Do Not Call list.

FTC Shuts Down Alleged Work-at-Home Scheme

Bob Robinson and his companies have been charged by the FTC with allegedly violating the FTC Act and the FTC's Business Opportunity Rule. The Rule requires business opportunity sellers make certain disclosure when they communicate with consumers to help them evaluate the opportunity. It also requires that they substantiate any money-making claims. The FTC complaint alleges that Robinson falsely made promises to customers they could earn thousands of dollars by working from home without any additional skills or training.  Read the full complaint here.

Two new FCC commissioners confirmed

On August 3, 2017, the Senate confirmed new FCC commissioners Jessica Rosenworcel (D) and Brendan Carr (R). The vote to reconfirm commissioner and chairman Ajit Pai was delayed, as the Senate will likely wait until after the August recess due to democratic opposition to his reappointment.

Court of Appeals affirms summary judgement in favor of defendant in TCPA case

In Jones v. Royal Administration Services, the court of appeals held that "Royal Administration Services, Inc., could not be held vicariously liable for telemarketing violations under the TCPA for several phone calls made by telemarketers employed by All American Auto Protection, Inc., because the telemarketers were independent contractors and therefore did not act as Royal’s agents, as defined by federal common law." Read the full opinion here.

 

Court rules that texts sent to finalize transaction do not violate TCPA

In a recent district court decision, it was ruled that a text message sent to a cell phone in order to complete a transaction was not considered telemarketing. In Wick v. Twilio Inc., Plaintiff Noah Wick alleged that he received an unsolicited text message after he tried to order a free sample of a dietary supplement on a website. He received a text stating that his order was incomplete, and he needed to follow a link to finalize and place the order. The defendant filed a motion to dismiss, arguing that the plaintiff had initiated the transaction and provided his phone number as part of that process. The court agreed with the defendant's argument, ruling that the text messages were not telemarketing and that the plaintiff's provision of his cell phone number constituted telemarketing consent under the TCPA. Learn more about telemarketing to cell phones.

 

Kari's Law

The U.S. Senate recently passed "Kari's Law," which would require the ability to direct dial 911 on multi-line systems that are commonly used at hotels and large offices. Learn more about Kari's Law here.

FTC to increase frequency of robocall reporting, New FCC Fine

Last week, the FTC announced that they will be increasing the frequency that they report phone numbers suspected of being used to make illegal robocalls. The FTC receives more consumer complaints about unwanted robocalls than any other category. Nearly two million of these complaints have already been filed in 2017. In last week's announcement, the FTC stated that when they receive complaints about robocallers, the corresponding phone numbers will be reported daily to telecommunications carriers and other organizations that are working to block illegal robocalls. This change will make it even more important for businesses that use prerecorded voice messages to do everything they can to avoid and quickly resolve consumer complaints. Learn more about robocall laws.

FCC proposes $82 million fine for alleged spoofed robocalls

Just weeks after the FCC issued a $2.88 million fine against a company for allegedly making millions of robocalls using technology that enabled caller ID spoofing, a much more significant fine of $82 million has been proposed against Best Insurance Contracts for allegedly making 21 million calls using similar technology. Based on consumer complaints, the FCC subpoenaed the call records of Best Insurance Contracts and verified that the spoofed calls were made. Business owners should do everything they can to resolve consumer complaints on their own before the consumer decides to send those complaints to federal agencies. Examples of best practices include only calling with proper consent, only displaying caller ID information for numbers that the business does own, scrubbing against national and state DNC lists, and honoring all opt-out requests. Learn how to follow other telemarketing rules and set proper telemarketing compliance goals.