Recently, a Costco member completed a home improvement information request on site, asking for a callback to two numbers. The member then turned around and prosecuted the home improvement company, claiming incomplete consent language on the method of callback. Both numbers were listed on court records as previous TCPA filers, so legal action could have been easily avoided had the leads been examined for former claimants.
Too often, marketing companies attending our compliance get-togethers can't make a decision on scrubbing for previous litigants. They want to have more meetings about it, including:
More internal discussions with our executive and legal teams.
An O.K. from the IT department.
More compliance webinars.
Not compatible with our systems.
We're spending too much time already on compliance.
TCPA suits alone are up over 40% this year. By far the fastest growing segment of call prohibition legislations - and the most expensive. It will get worse before it gets better - so not a good time for more discussions and inaction on identifying previous litigators.
Further, the FCC hasn't given guidance on proper language for express written consent leads. Exactly how you should tell people you're going to call them back. Exactly how to phrase the critical "no sale required" wording. Or even how to prove they contacted you at all.
This has created a lawsuit haven for smart consumer TCPA litigants and attorneys. They have more fun and experience suing than you. And they don't care if they win or lose - because the Telephone Consumer Protection Act and it's various legal interpretations are so slanted for these plaintiffs - they know, if they just keep suing, it will all come out in their favor.
TCPA plaintiffs are betting with house money
Before you call back that web form asking about internet loans, or your on-site flier offering free estimates, or your computer software offering to other businesses - think about this:
It could be a trap. By picking up the phone and making that call, unless you have proper consents (which almost no company has, big or small, and frankly, legal teams don't even care about. Until it's too late, of course. Then the forms have everyone's attention.)
You may never have the right "consent to call" language on your internet forms.
Language that might hold up in court. In fact, proper consent language may not even be on your radar. The ONLY time General Council's call me about it is when some predatory litigant is sueing them. Even when I point it out during our many consultations with major marketing firms, everyone yawns.
So given this uncertain callback environment - insist on running your leads against former TCPA and DNC litigants before calling back. Use Litigator Scrub every company touchpoint as outreach titles change from prospect to lead generator to customer to vendor - in and out of the loose borders of companies with multiple branches and chargers.
Know who the previous TCPA prosecutors are before calling.
You're just plain not set up to do battle with expert TCPA attorneys. You're set up to sell to folks. To give prospects all the information you have, willingly, on your project or service. All the love you can muster. But love is a two-way street. It makes you particularly vulnerable to being taken out by a call prohibition plaintiff that knows what they're doing. (Or even doesn't know what they're doing!)
Sure, your lawyer can sometimes get you off on technicalities.
That's what TCPA defense attorneys are good at. Something the prosecution didn't fill out perfectly, or didn't file correctly, or forgot about. But don't count on it. Judges are people too. And they've undoubtedly experienced the bad actors soliciting their cell phone on a regular basis. The calls that can't be traced. The violators the FCC has contests trying to find.
We already know who the TCPA litigators are - so take advantage of it.
Anybody that's actually filed a court case. Not just complained to a call center. Not just whined - but actually went to all the trouble, expense and education of filing. Most of these guys don't do it for the money - although they love the cash. No, they do it for the pure pleasure of paying somebody back, anybody, for calling them.
Look at is this way - folks on our Litigator Scrub list are the pros. They may well have nothing better to do than prosecute you. They live for this stuff. They have their own community of advice, legal briefs and smiley faces to keep the party going. They are more enthused about suing you than you will ever be about defending yourself.
You don't want to mess with previous TCPA Litigants.
- Calling Businesses: Try a Litigator Scrub for TCPA, DNC, FDCPA and FCRA first.
- Do I need a Litigant Scrub if I'm already scrubbing for TCPA and DNC Cells?
- 7 Reasons a Litigator Scrub is essential for TCPA Compliant Calling Today