How to Do Telemarketing Without Getting Sued
Walgreens was also recently sued in a class action lawsuit, settling the case for $11 million, after plaintiffs claimed that they had been "robocalled" when the pharmacy used their phone numbers to alert them for prescription refills. This matter truly underscores how hungry plaintiffs' attorneys are leveraging (arguably even exploiting) this statute. Additional lawsuits filed have involved DIRECTV, Toyota, Rite Aid Corp., and sports teams including the Los Angeles Clippers.
What Constitutes "Consent"?
What constitutes consent is a gray area. There are some decisions that would support the finding that a consumer provides "consent" when a reply email includes a cell phone number. The argument is that, by providing a cell phone number, the consumer is consenting to its use for return calls. Still, marketers and agencies should obtain consent from consumers in the following ways:
- Obtain written consent for automated marketing calls
- Always check the "Do Not Call" Registry
- Maintain a record of consent for your company
- Offer an opt-out and make certain that the options are TCPA compliant
Avoiding TCPA Lawsuits
Agencies need to be aware that if they will be using any kind of list, prior express written consent is necessity. Marketers and advertisers should consult attorneys versed in the nuances of the TCPA, telemarketing and online marketing practices to ensure compliance.
Mona Z. Hanna is a Partner in Irvine, CA, and Kristen Peters is a Senior Associate in New York, at Michelman & Robinson, LLP. Ms. Hanna can be reached at firstname.lastname@example.org; Ms. Peters can be reached at email@example.com.