If you are making calls to consumers, people like Melody Stoops could be your worst enemy. According to a recent Forbes article, Ms. Stoops is a self-proclaimed serial plaintiff, preying on companies to sue for violations of the Telephone Consumer Protection Act (TCPA.) In fact, Ms. Stoops has 35 cell phones she acquired just for the purpose of baiting companies to call her so she can file TCPA suits against them.
She’s not alone. There are law firms seeking plaintiffs, and some even have launched cell phone apps to make it as easy as possible to capture calls that they may be able to put claims against. Any company is at risk, so it’s critical to protect your business if you are dialing consumers.
What does this mean to marketers and compliance professionals at companies making calls to consumers?
To avoid a TCPA suit, you must ensure ahead of dialing that you have prior express written consent on a clear and conspicuous disclosure. It doesn’t really matter if it’s a serial plaintiff or a one time incident. If you handle dialing consumers with the right compliance process then you are only dialing or texting the consumers who have provided the correct proper consent and have the confidence you need because you’ve taken all the right steps ahead of dialing them.
Unlike what we have always been taught about the U.S. justice system, when it comes to the TCPA, you don’t really seem to be innocent until proven guilty. Rather, if you do end up getting targeted, the burden is on you to prove that you are not violating the TCPA by providing persuasive evidence that you had express written consent.You need a compelling way to show that the plaintiff using any of the phone numbers she entered, no matter with which of the 35 it was, provided consent to be called.
Does the Spokeo ruling mean that companies are now safe from these serial plaintiffs?
Wells Fargo was fortunate that the judge in Ms. Stoops’ case based his decision on the recent Spokeo case, though, companies cannot rely on all judges to interpret the TCPA in the same way. In fact, one of my colleagues recently wrote a blog about the largest TCPA case to date, against Caribbean Cruise Lines, which tried to use the Spokeo case to their advantage and was not successful.
Even though Wells Fargo won against Ms. Stoops, the company still had to go to court and pay the legal fees associated with the case. They may have been able to avoid having to go to court if they had had a reliable solution in place to be certain that the consumers they were dialing had provided express written consent to be called. And they could have avoided even having to step foot in court if they’d had persuasive evidence to provide to Ms. Stoops’ attorney to get the case dropped immediately.
Regardless of the legal outcome, the damage to the company’s reputation has been done. Wells Fargo’s brand is now tarnished by being associated with a TCPA claim and the damage to the reputation of a business can be far more harmful than any monetary cost.
Companies are challenged to know exactly what steps they need to take to prevent a TCPA lawsuit and how a judge will interpret it. Businesses need a clear path to get all the information needed and documented ahead of time for as long as it is needed. Because it could be open to interpretation by a judge at some point, it’s crucial that you can undeniably prove you have followed all the best practices.