More than a few law firms out there are looking for companies that are in violation of the telemarketing laws. Are you protecting yourself?
By Steve Moran
Since I broke the story about A Place for Mom being sued for violating consumer protection telemarketing laws, I have been talking to a bunch of folks, including Jon Hawk — an attorney with the law firm White & Case LLP and an expert in telemarketing laws — about what it means for the industry and what it might mean for senior living providers. There are four significant questions that have surfaced:
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Is the lawsuit likely to be successful?
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Are the leads I received from A Place For Mom tainted?
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What language needs to be on my company’s website to keep us in compliance with the law?
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When prospects call into our community and don’t leave a name or number, but our system records the number they are calling from, is it legal (and ethical) to call them back?
DISCLOSURE: I am not an attorney and nothing in this article should be seen as
legal advice emanating from me or anyone who provided input for this article.
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Is the Lawsuit likely to be successful?
Pretty much everyone I have talked to thinks APFM is going to get whacked for some money. That being said, I have not heard anything from APFM since the action was filed, but I can only assume they will strongly object to the lawsuit having any merit.
While the law provides for a fine of at least $500 per dial (whether answered or not) an amount that would likely break the bank for APFM, I am guessing there will be a court-approved settlement that will leave APFM smarting but still in good shape.
I would note that since the lawsuit has surfaced they have added prior express consent language to their website. This should not be seen as an admission of wrongdoing but rather a practical preventative action in case things do not go as they hope.
Violation of the telephone consumer protection act has become a popular area of exploration for attorneys. Prior to the APFM filing it does not appear that senior living was targeted.
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Are the leads from APFM tainted?
The answer to this question is muddy . . . the problem you face as a senior living provider is that if the lead you received was improperly obtained, the safe course of action would be to not pursue those leads.
Related and as sobering, if you have leads that came from your company website (or other sources) that did not grant you specific prior express consent to call, those leads may also be tainted . . . or they may not. This is something you will likely need to address with your legal counsel.
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What Language Do You need on Your Website?
I want to be clear I am not an attorney and this is not legal advice, but after doing some digging, something along this line would seem to work:
By submitting this form, you agree to be contacted by [company] to explore [product or service] at the telephone number you have provided. You agree we may use automated calling technology to contact you by call or text message at the telephone number provided, even if you previously registered on a Do Not Call registry. This consent is not required to obtain our [product or service].
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When prospects call into our community and don’t leave a name or number, but our system records the number they are calling from, is it legal (and ethical) to call them back?
You are not going to like this answer, but in truth you likely have not met the letter of the law by just capturing a hang-up number because someone placing a call to your community and hanging up without giving prior express consent for a return call would likely be in violation of the law.
The Harsh Reality
The harsh reality is that there are more than a few law firms out there looking for companies that are in violation of laws like this because those violations have a high potential to generate legal fees for law firms representing plaintiffs. This particular area has been very fertile ground for such law firms, though until the APFM lawsuit was filed, senior living had been spared.
It seems likely that senior living could be seen as an opportunity by plaintiffs’ law firms tackling this area.
The bottom line is that you need to chat with your legal folks about how to protect yourself.
