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2018’s Three Biggest Telemarketing Takeaways

While 2018 is a thing of the past, it ushered in several major settlements that continue to affect companies engaging in the telemarketing industry. These settlements provide key insights for businesses seeking to avoid enforcement action and litigation that could cost upwards of millions of dollars in fines and attorneys’ fees.

Takeaway #1:  Plaintiffs Continue to Target Text Messaging Practices

The Northern District of Illinois granted approval to a TCPA class action settlement involving a record-breaking payout to consumers. The settlement requires Western Union to pay $8.5M to resolve the claims of 741,800 class members. These members received unsolicited text messages from the money transfer company asking if they would like to “opt-in” for updates from Western Union. The plaintiffs in the case claimed that they never provided consent to receive any texts from the company and filed a class action alleging violations of the TCPA. After several months of negotiations, the multi-million dollar settlement figure was agreed upon, providing up to $650 per class member after payment of attorneys’ fees and costs. The case is poised to be the largest per member deal yet.

In a world where text messaging is quickly becoming more popular than phone calls, the TCPA’s regulation of text messaging solicitations is nothing to take lightly. Companies should investigate their use of text messaging and ensure they are compliant with all TCPA regulations.

Takeaway #2:  Faxes Still Matter

A class action law suit accusing Allstate Insurance of TCPA violations under the Junk Fax Prevention Act has set new heights for TCPA settlements. Plaintiffs accused Allstate Insurance of transmitting unsolicited faxes without receiving express invitation or permission. Allstate also failed to include the required “opt-out” language in their fax solicitations.

This Junk Fax TCPA class action suit resulted in a $6.5M settlement in favor of a class receiving a mere 17,422 faxes. That amounts to $375 per fax, per class member.

While the use of fax technology may be seen as a thing of the past, faxes are still very much on plaintiffs’ radars and the TCPA’s provisions on junk faxes are as relevant as ever. Faxing campaigns should be carefully evaluated to ensure they are compliant with TCPA rules and regulations.

Takeaway #3:  Prerecorded Voicemails Are Just as Dangerous as Calls

The Eastern District of Michigan approved a TCPA settlement for $5.875M against Art Van Furniture. The retail furniture chain left numerous voicemails regarding a “VIP” party at their stores with a prize. The messages, however, were left using prerecorded voice technology and without consumer consent. The messages were promotional in nature, which made the court skeptical of their origin and dissemination. The settlement class consisted of about 1,150,000 individuals.

For TCPA purposes, prerecorded messages can cause legal troubles whether they are live calls or voicemails. Companies should investigate their use of voicemail solicitations to ensure they are compliant with TCPA rules and regulations, taking particular note of the different rules applicable to prerecorded messages.

These notable settlements represent just a few in a long string of TCPA litigation that has been filling up the court dockets in recent years. Last year’s enforcement activity demonstrated that courts are willing to grant plaintiffs millions of dollars for TCPA violations, making it essential for companies to reevaluate their solicitation programs to ensure continued compliance.

* Ali Najaf contributed to this post.

Mac Murray & Shuster is a nationally recognized firm focused on consumer protection and privacy regulatory compliance and litigation. With a team led by former state regulators, we provide comprehensive counsel to businesses of all sizes in highly regulated industries, including financial services, healthcare, teleservices, automotive, insurance, and consumer marketing.

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