Category Archives: Telemarketing

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Criminal Charges Brought Against Telemarketers

Criminal charges against six individuals allegedly involved in a telemarketing scheme targeting elderly people were brought today by the US Attorney’s Office for the Southern District of New York. According to the Complaint, the defendants contacted elderly consumers with business opportunities requiring nothing more than a simple cash investment. The consumers were promised that they … Continue Reading

‘Til Contract Termination Do We Part: Circuit Courts Reach Differing Conclusions on Whether TCPA Consent Survives the Termination or Expiration of a Contract

Under the Telephone Consumer Protection Act (TCPA), businesses generally may not place an autodialed telemarketing call or a telemarketing call that delivers a pre-recorded message unless the recipient has provided his or her prior express consent to receive such a call. Recently, the Sixth and Ninth Circuits ruled on whether a business may place a … Continue Reading

The End of Non-Marketing Calls to Cell Phones? Petition Before the FCC Would Drastically Change the Consent Standard for Non-Solicitation Calls

On January 22, 2017, serial Telephone Consumer Protection Act and Fair Debt Collection Practices Act plaintiffs, Craig Moskowitz and Craig Cunningham, filed a petition for rulemaking and declaratory rulings before the Federal Communications Commission (FCC), requesting that the FCC issue a rule that, if passed, would eliminate the “prior express consent” standard for non-solicitation calls … Continue Reading

Soundboard Industry Sounds the Alarm Against FTC Changes to Telemarketing Sales Rule

In a development that many telemarketers will want to follow closely, the Soundboard Association (SBA) recently filed a complaint against the Federal Trade Commission (FTC) in the U.S. District Court for the District of Columbia. The SBA simultaneously asked the court to issue an injunction blocking the FTC from expanding the Telemarketing Sales Rule’s (TSR) … Continue Reading

FCC Posts Enforcement Advisory Alerting Businesses of TCPA Text Messaging Rules

The FCC was busy in November.  On November 18, the FCC posted an Enforcement Advisory on robotexting and consumer protection, and on November 21 published a blog on robocalls.  The FCC notes that the Advisory was issued to promote understanding of the clear limitations on the use of autodialed text messages, often referred to as … Continue Reading

FTC Complaint Confirms Interest in Lead Generation

When the Federal Trade Commission (FTC) investigates a case, it looks at it from the first contact the consumer has with a product or service through the end of the consumer experience. For many consumers, the first contact with a product comes through lead generation, where a “lead generator” tries to find consumers interested in … Continue Reading

Is It or Isn’t It? The D.C. Circuit Hears Oral Argument on the FCC’s 2015 Omnibus TCPA Order

On October 19, 2016, Judges Srinivasan, Pillard, and Edwards of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in ACA International, et al. v. FCC, No. 15-1211, a consolidated appeal filed by various telemarketing industry members challenging a number of aspects of the FCC’s July 2015 Telephone Consumer Protection Act (TCPA) … Continue Reading

Why the Caribbean Cruise Line Record-Breaking TCPA Settlement Could Contribute to “The End of the [TCPA] World As We Know It” (and We Feel Fine)

Caribbean Cruise Line Settlement (Revised 10/13) A Telephone Consumer Protection Act (“TCPA”) class action litigation, Birchmeier, et al. v. Caribbean Cruise Line Inc., et al., No. 1:12-cv-04069 (N.D. Ill.), has been winding its way through the court system for four years and finally settled this month. Caribbean Cruise Line and its co-defendants, who were sued … Continue Reading

$500 is the Max – The TCPA is Not a Fee Shifting Statute

Recently, there have been numerous cases dismissed because plaintiffs have treated the Telephone Consumer Protection Act (TCPA) like a business opportunity rather than as a consumer protection statute. Courts also have had to step in over the past several months to reign in plaintiffs’ counsel when it comes to their attorneys’ fees. Such is the … Continue Reading

No Concrete Injury or Tendering Payment = Moot?

TCPA Dismissal Raises More Questions Than It Answers The U.S. District Court for the District of New Jersey recently dismissed a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA) on grounds that the Court lacked subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Yet, the one-page dismissal order leaves more … Continue Reading

Recent Opinion Highlights – The Risk of Unhealthy Telemarketing Practices

Last month, the U.S. District Court for the Southern District of Florida issued an opinion that serves as a powerful reminder of the risks of not taking telemarketing compliance seriously. In August 2014, the FTC sued the Partners in Health Care Association (“PIHC”), its principal Gary Kieper, and others for deceptively telemarketing medical discount cards.  … Continue Reading

Revisiting Telemarketing Record Retention Requirements

The Federal Trade Commission (FTC) is seeking comment on the disclosure, recordkeeping, and reporting requirements of its Telemarketing Sales Rule (TSR). The deadline for public comment is June 13, 2016. The FTC’s recent notice invites public comments on four issues: Whether the TSR’s disclosure, recordkeeping, and reporting requirements are necessary, and whether the resulting information … Continue Reading

Don’t Browse Over Your Website Disclosures

Litigation surrounding the enforceability of website terms isn’t new.  Indeed, back in 2014, we blogged about the Nyugen case. Yet, courts continue to grapple with the question of what constitutes an adequate disclosure and binds website visitors to the terms and conditions of a service agreement. Last month, the Seventh Circuit decided in Sgouros v. … Continue Reading

The Phone Keeps Ringing . . . But is it a Residential Line and Was an Autodialer Used?

As the weather changes and I reach for the allergy medicine in my bottom desk drawer, I’m reminded of that old proverb, “March winds and April showers bring forth May flowers.”  March winds also bring plenty of pollen and, apparently, a flurry of activity on the Telephone Consumer Protection Act (“TCPA”) front regarding what constitutes … Continue Reading

State Attorneys General Tell Senate to HANGUP on Robocalls

On February 10, a bipartisan coalition of 25 state attorneys general, led by Missouri Attorney General Chris Koster and Indiana Attorney General Greg Zoeller, sent a letter to the Senate Committee on Commerce, Science and Transportation urging passage of the Help Americans Never Get Unwanted Phone Calls Act of 2015 (the HANGUP Act). The letter should … Continue Reading

Lifewatch claims FTC “Manipulating” Unreliable Consumer Complaint Data in Preliminary Injunction Fight

There’s an interesting little fight going on in a Telemarketing Sales Rule (“TSR”) case brought by the Federal Trade Commission and the Florida Attorney General in the U.S. District Court for the Northern District of Illinois that is flying a bit under the radar.  Lifewatch Inc. is in the midst of battling the FTC’s motion … Continue Reading

Court Rules Settlement Offers Can’t Kill Class Actions

In a hotly anticipated decision, the Supreme Court yesterday refrained from permitting defendants to end class action cases by offering to make named plaintiffs whole by paying their damages before plaintiffs move for class certification. In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), Jose Gomez alleged that Campbell-Ewald violated the Telephone Consumer Protection Act … Continue Reading

Pause, Clicking, and Dead Air – TCPA Autodialers as a Story about Nothing

In Telephone Consumer Protection Act (“TCPA”) autodialer cases, it is important for defendants to put plaintiffs to their evidentiary burden of proving that an autodialer actually was used.  As one recent case discussed below demonstrates, being active on this front and keeping records showing how a company lawfully engages in telemarketing can save time and … Continue Reading

Will Plaintiffs Have a Leg to Stand On?: The Supreme Court Considers Whether Statutory Damages Constitute Article III Standing

Imagine a situation where a person purchases a $74,999 foreign car without test-driving it first, only to receive it and find that the engine is missing, rendering the car nearly valueless.  Now also imagine a person who answers a call on her cell phone, hears a prerecorded message offering her a free vacation package opportunity, … Continue Reading

FTC Amends Telemarketing Sales Rule: Amendments Include a Ban on the Use of Certain Payment Mechanisms in Telemarketing and Clarification on Existing Provisions, Including the Business-to-Business Call Exemption

Last week, the Federal Trade Commission (FTC) released new amendments to the Telemarketing Sales Rule (TSR) that the FTC first proposed in July 2013 and that will go into effect in 2016.  As expected, the new amendments make a number of substantial changes, including a ban on the use four types of payment methods in … Continue Reading
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