Displaying items by tag: telemarketing laws

These 31 states have a local telephone solicitor licensing process.  Many of these same states also require the placement of a telemarketing surety bond.  Most call centers are unaware that the licensing is required not only for their home state where they call from, but also applies to all the states they call into.  The process, forms and annual dues vary greatly by state.  Thankfully, the cost in most states is minimal.  Also, each license state has a list of possible licensing exemptions.  Some states exempt consent-based campaigns, inbound campaigns, and professional insurance and real estate licensees, for example.  Other states exempt telemarketers who refrain from prize promotions.  Marketers who lack licensing or who only have their home state license should promptly conduct a 50-states exemption analysis to determine their obligations and exposure.  In general, states want unlicensed call centers to come into compliance and operate in the sunlight, meaning they rarely penalize call centers for coming to get the license for the first time.  Licensing is not an issue to blow off though, as some states (Florida, for example) routinely raid and shut down unlicensed floors.

1. 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.
2. 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.
3. 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).
4. 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.
5. 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. Counsel can often help you make wise settlement decisions, whether you ultimately fight the case or not.
6. 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.
7. Numerous avenues of attack exist in TCPA cases.  For example, we often motion to dismiss cases under the 2016 Spokeo Supreme Court decision which held plaintiffs need to have suffered actual harm.  We also motion to dismiss when a civil complaint does not state the plaintiff's phone number, dates of the alleged calls, type of each call and whether it was answered.  We also motion to stay (postpone) cases pending an outcome in the important ACA International lawsuit against the FCC regarding what an autodialer is.

A group of law firms who previously represented numerous TCPA "professional plaintiffs" is getting a taste of their own medicine as they are now the defendants in a class action lawsuit. Jeffrey Winters and his company, Collection Solutions Inc., is the named plaintiff in the case Winters v. Jones, filed on December 5, 2016. Click here to view a copy of the civil complaint. Defendants include, among others, Laura Mann and Yitchak Zelman, counsel for numerous plaintiff TCPA cases.
 

The defendants have allegedly been engaging in what is essentially a "racketeering" operation since early 2013. The lawsuit alleges this involved the filing of numerous, baseless TCPA and similar consumer protection lawsuits by the defendants against debt collection and other companies. The defendants would demand settlements in the range of $10,000 to $100,000, assuming that most of their target companies would take advantage of the less expensive settlement instead of investing even more money and time in a drawn-out litigation.