Terminix TCPA Class Action

Pest control company Terminix allegedly made hundreds of thousands of unsolicited calls using an Automatic Telephone Dialing System (ATDS) and prerecorded voice messages between 2012 and 2017. Terminix is one of the country's largest pest control companies and operates in 47 states. The plaintiffs in the case alleged that even after they opted out of the unsolicited calls, Terminix continued to contact them on their cell phones. Telemarketing businesses should understand cell phone telemarketing laws and Do-not-call regulations.  Learn more about this class action lawsuit here, and click here to view the original complaint and other case documents. Contact a TCPA Defense Attorney and learn more about telemarketing compliance so that you can avoid lawsuits like this.

CFPB Takes Action Against Document Preparation Company

The Consumer Financial Protection Bureau (CFPB) has taken action against two debt relief and document preparation companies: Federal Debt Assistance Association, LLC and Financial Document Assistance Administration, Inc. The CFPB alleges that the companies made "false claims of government affiliation" and "misled consumers about the results that could be achieved under the FDCPA’s debt-verification process." This should serve as a good reminder to direct marketing companies about the importance of never leading a consumer to believe that your company has any official government affiliation. Additionally, be sure to never misrepresent what your products or services can actually achieve for a consumer. A copy of the CFPB's complaint can be found here. To avoid violating specific telemarketing rules, contact a telemarketing attorney.

Mississippi Regulator Wants to Make it Easier to Sue Telemarketers

While consumers can currently sue telemarketers in federal court under the TCPA's private right of action provision, the ability to sue in state court varies from state to state. Mississippi regulator Brandon Presley said he “wants to scare the britches” off telemarketing companies by "allowing Mississippians to personally sue them." This proposal will likely be a part of Mississippi's 2018 legislative session. Read a local news story about the proposal here. Telemarketers should understand state by state telemarketing license requirements and telemarketing bond requirements.

FTC and Several States Announce Crackdown on Student Loan Debt Relief Scams

The FTC, 11 states, and the District of Columbia have announced a coordinated effort involving 36 different enforcement actions aimed at shutting down alleged student debt relief scams. "The agency alleges that the defendants in these actions charged consumers illegal upfront fees, falsely promised to help reduce or forgive student loan debt burdens, and pretended to be affiliated with the government or loan servicers, in violation of the FTC’s Telemarketing Sales Rule and the FTC Act." Read more here. Learn more about FCC telemarketing laws and telemarketing regulations.

TCPA Reform Would Support Small Businesses and Spur Economic Benefits

Those who have experienced frustrations with the many hurdles and complexities of TCPA compliance will want to read this short opinion article that was published on jdsupra.com this week. "Growing evidence suggests that existing Telephone Consumer Protection Act (“TCPA”) compliance challenges, and the current TCPA litigation landscape, are increasingly a threat to many U.S. companies – particularly small businesses that have fewer resources and could face financial ruin if targeted by a class action lawsuit.  To help address this issue and support the U.S. economy, Congress and the Federal Communications Commission (“FCC”) should revise the current TCPA framework and facilitate reasonable, practical compliance approaches for companies attempting in good faith to communicate with customers." Read the full article here.

Practical TCPA Defense Tips

Having defended numerous Telephone Consumer Protection Act cases in state and federal courts across the country, we wanted to convey a few practical tips for those of you currently battling your own TCPA case, or who might face such a claim in the future:

• Prevention first.  Avoid TCPA claims in the first place by refraining from autodialing/texting cell phones or delivering prerecorded messages without express written consent.  Also, telemarketers should scrub state and federal DNC lists unless they have consent, and honor all opt-outs promptly.  If you have consent, be sure you can prove it through good record keeping. To learn more prevention tips, contact a TCPA defense attorney. Be sure to understand Do-Not-Call list regulations.
• When the demand or summons arrives, immediately preserve all relevant evidence and contact your legal department or outside counsel.  Relevant evidence includes, for example, call logs/CDRs, consent records, scripts, call recordings, P&P and related correspondence.
• Investigate potential exposure.  Did you make a mistake?  If so, how (correct it).  If you were in compliance, can you prove it?  If so, how (gather the evidence).
• Request answer/response extensions if needed, but be aware that in some courts, a motion or other filing requesting the extension must be filed.  Not all courts allow you to rely on an informal extension from opposing counsel.  This often requires the involvement of litigation counsel early on.
• Consider early settlement opportunities, especially if you can confirm you have liability.  If the plaintiff will settle for an amount less than the cost of an initial answer or motion to dismiss, you may seriously want to consider putting that money toward a settlement, rather than to your lawyers.  Look at the math of it. A Telemarketing Lawyer can often help you make wise settlement decisions, whether you ultimately fight the case or not.
• If you elect to fight the case, do so aggressively.  Consider filing a sold motion to dismiss the case on multiple grounds, rather than merely filing a boilerplate answer.
• Numerous avenues of attack exist in TCPA cases.  For example, we often motion to stay (postpone) cases pending an outcome in the important ACA International lawsuit against the FCC regarding what an autodialer is. Learn more about autodialer laws.

Learn more tips about telemarketing compliance.

FTC Testifies Before U.S. Senate Special Committee on the Continuing Fight to Shut Down Illegal Robocalls

During a meeting with a U.S. Senate Special Committee, FTC Associate Director for the Division of Marketing Practices Lois Greisman gave a testimony about the FTC's continuing fight to try to shut down illegal robocalls. Since the FTC began enforcing the Do-Not-Call provisions of the Telemarketing Sales Rule, the agency has collected over $120 million from businesses for consumer monetary relief. Read more about Greisman's testimony here. Learn more about Do-Not-Call regulations, robocall laws, and telemarketing compliance. Be sure to contact a telemarketing attorney or a TCPA lawyer if you need additional help.

Kohl's Successfully Shuts Down TCPA Class Action

In Winner v. Kohl’s, the plaintiffs alleged that the popular retail company started sending them unsolicited text messages using an autodialer (find out what you need to know about autodialer laws). Kohl's filed a motion do dismiss, arguing that the plaintiffs opted in to receive the messages when they texted in an opt-in code that was included as part of an in-store advertisement. A judge granted Kohl's motion to dismiss the case, ruling that Kohl's did have the proper consent to send the marketing text messages. Read the court's opinion here. Learn how to respond to a TCPA lawsuit. Learn more about telemarketing to cell phones.

Credit Union National Association Seeks Exemption from Certain TCPA Regulations

The FCC is asking for comments about a petition that was filed by the Credit Union National Association (CUNA). "CUNA requests that the Commission adopt an established business relationship exemption from the Telephone Consumer Protection Act’s prior-express-consent requirement for informational autodialed or artificial- or prerecorded-voice calls (including text messages) made by or on behalf of credit unions to their members’ wireless phone numbers. Alternatively, CUNA requests that the Commission exercise its statutory authority to exempt from the TCPA’s prior-express-consent requirement credit union informational calls made to its members’ wireless phone numbers that are in fact free to the called party." Find more information about this petition and the commenting process here. Learn more about telemarketing rules.

Equifax Class Action

As a result of the massive data breach that was made public on September 7th, Equifax is facing what may end up being the largest class action lawsuit in U.S. history. The suit, filed in a Portland Federal Court, is seeking damages of up to $70 billion. While most companies in the direct marketing industry won't ever have to worry about anything that substantial, the risks of facing an expensive lawsuit for consumer privacy violations is very real. Read more about the Equifax class action here. If you are a telemarketer trying to comply with consumer protection laws, contact a telemarketing attorney and consider having a telemarketing audit performed. There are many important aspects of telemarketing compliance to be aware of.

Office Supply Telemarketers to Pay $7 Million to Settle FTC Charges

Telestar Consulting Inc., a seller of office supplies, has agreed to pay $7 million to settle FTC allegations that they billed customers for products that they never ordered. The settlement also bans Telestar and its owners from telemarketing non-durable office, cleaning, educational and art supplies to consumers, among other things. The Better Business Bureau had received numerous complaints about the company, which likely sparked the FTC charges. This should serve as a reminder to all telemarketing companies about the importance of resolving consumer complaints before they escalate. Read more about this case here. Consider having a telemarketing lawyer examine your compliance with telemarketing rules such as autodialer laws, robocall laws, do not call regulations, etc.

Man from Texas Fined by Kansas Attorney General

Texas business owner Bryan Sean Sturrock was recently fined $2,500 by the Kansas Attorney General's office for violating the state's No-Call Act. A copy of the consent judgement can be read here, and a local news story with more information can be found here. Telemarketing businesses need to ensure they are compliant with the laws of both the state they are calling from and the state they are calling into. Make sure you understand state by state telemarketing license regulations, telemarketing bonds, how to respond to an attorney general, etc.

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.