Derek: Hi, everyone.
Derek Johnson with tatango.com.
I’m here at Innovista Law which is home to the TCPA Defense Force.
I’m with Joe Bowser here, a TCPA attorney.
So, Joe, what happens if you violate the Telephone Consumer Protection Act and someone threatens
to sue your business for violating the Telephone Consumer Protection Act?
And, I guess, maybe there’s two.
Maybe, if you maybe, are in the wrong, or if you know you’re not in the wrong.
Joe: Right.
Well, a lot of times you’re not, right, because everyday our clients get demand letters
saying, “I didn’t consent to get these calls.
You’ve called me a hundred times.
I’ll settle quickly if you cut me a cheque of X dollars.”
Derek: And this is not a lawsuit they’re filing.
Joe: It’s a demand letter.
Derek: Okay, so it hasn’t reached the court yet.
This is just, like, FedExed to you or the brand, and it’s a threat.
Joe: Exactly.
Right.
It has no legal consequence other than what we’re about to talk about.
Derek: Future.
Okay.
Joe: Okay.
So, when you get a letter like that, courts think that you ought to start preserving the
evidence.
So, you should.
So, you’re to should send out what’s called a “litigation hold notice” about that
consumer.
A lot of times you don’t even necessarily get their phone number.
Derek: I’ve heard that before.
Joe: They’ll make demands, and say, “You called me without my consent,” and then
not give their phone number.
Well, that’s interesting.
Would you like to tell me your phone number so I can look this up?
But in any event…so, there may be back and forth between the consumer and the company.
Derek: Now, should that be…at that point, should it be handed off to corporate council
or TCPA attorneys?
Who is handling that communication?
Joe: Right, so we’ll get into some of the risk mitigation issues.
But legal should definitely be involved, whether if you have in house council, certainly get
them on board.
Derek: So, this is not the marketing person?
Joe: No.
Derek: At that point, get some attorney involved.
Joe: TCPA exposure is real and it’s seven-figure and up for any real campaign.
So, you definitely want legal involved.
Risk management may need to be involved, because you probably want to look at your insurance
policies to see what coverage might exist.
So, you wanna to preserve your evidence.
You wanna gather that evidence because the best form of defense is consent.
Derek: What do you mean by preserve the evidence?
Joe: No.
Right.
So…
Derek: It sounds like a crime scene.
Joe: …if your call logs would ordinarily get recycled, you want to suspend that recycling
function.
Derek: Just make sure you’re not throwing things out and getting rid of…
Joe: Exactly.
So if…yeah.
What you don’t want to happen is for things that are currently accessible, or you could
go dip those logs real quick, right?
Derek: Yep.
Joe: You don’t want them to get put on backup tapes, that aren’t labelled well, that are
only really for disaster recovery purposes.
Derek: Especially after you get the letter because then that just looks bad.
Joe: Well, not only does it look bad, it can carry legal consequences about the spoliation
of evidence.
Derek: Okay, so really, preserving the evidence, it’s not like a crime scene.
It’s essentially making sure all the data remains intact that was there and present
when you got that letter.
Joe: Exactly.
And you want it, too, right?
You wanna be able to access it because, like, I just said, your best defense may be consent
which…and it’s a defense that you have to prove.
So, they just have to say, “I got an unwanted call via an autodialler, or an unwanted text
via an autodialler.”
Period.
That is a TCPA violation.
Derek: And, you, as a business, now have to defend yourself.
Joe: Exactly.
Derek: Okay.
I think we talked in an earlier video about keeping records.
And it seems, like, at this point, I think, it was four years or something, but also that
doesn’t include when they opted-in, and all the records back then.
It sounds like just keep all your records to make sure they’re in good order, as well.
Joe: Right.
Yeah, exactly.
If they’re not searchable, they’re not doing you any good.
Right?
Then you can’t mount your defense.
Derek: And records include, like, inbound, outbound text messages, any ads you’re running,
even television ads.
Would you keep an, like, a copy of the television ad?
Joe: Exactly, because they could say that they revoked consent in an inbound message.
It might be tempting to say, “Well, I don’t care what they say to me.”
Well, if they say, “I texted you to stop texting me,” you wanna be able to comb your…
Derek: Through records.
Joe: …your records, sorted by their phone number, and be able to say, “Well, these
are the messages we got.”
Derek: So, really…
Joe: So, you’re saying I magically lost the one…
Derek: Yeah.
Joe: …that you…
Derek: Every single test message because I know some providers are like, “Oh, we keep
all the outbound text messages.”
Keep the inbound, keep the outbound.
Keep everything.
Even, when they text in mistakes, or something, or something that doesn’t match anything
in your system…
Joe: Well…
Derek: …keep it all.
Joe: Yeah, if there ever becomes a question about the integrity of your records, if you
have everything, you don’t have to talk about gaps.
Derek: Okay, perfect.
Joe: Right?
So, you want to preserve the evidence.
You wanna go through that evidence to find out what evidence of consent you have.
Derek: If, I guess, you can, because they might not give you the phone number, right?
Joe: Correct.
Derek: Okay.
So, first you’ve got to get the phone number and then be able to search through that.
Joe: Well, you might be able to cross-reference your data.
You might be able to go back to your client, or cross-reference them in some other way
to say, alright, “His name is, you know, Jimmy Johnson.
I’ve got a Jimmy Johnson here in my files.
I don’t know his phone number, but I only have one.
Let’s take him out of the campaign.
Let’s stop texting him now.
Right, because what you want…
Derek: Well that would be, stop text messaging them.
Joe: Right, so you should treat that later as a revocation of consent.
Derek: Oh, okay.
I didn’t know that.
Joe: Yeah.
It’s a best practice.
The guy’s…you’re not going to pursue…
Derek: Yeah.
He doesn’t want…yeah.
Stop text messaging him.
Joe: Yeah.
So, if he’s telling you in that letter, “You sent me a message,” or “one or
more messages without my consent.”
I would read that letter to say…
Derek: …as, “Remove me.”
Joe: “If I haven’t already, I’m revoking consent.”
Derek: Okay.
That’s good.
So, conserve all the records.
Then remove that phone number if it’s included, or try to find that phone number, or the phone
numbers.
So, any other steps?
Joe: So, you want to…right.
So, you put the litigation hold on.
You preserve the evidence.
You go through the evidence to find consent.
You let legal know.
Of course.
And then you start preparing your defensive letter, right?
If you have evidence of consent, you want to get that out there, right?
Because that’ll put the…you know, 9 out of 10 complaints attorneys on their heels.
They’ve got a number of other cases going.
They have got a pipeline of cases that they’re trying to pursue.
If they see that you have clear defenses, they’ll walk.
Derek: It’s not worth it for the, if there’s easier cases, you’re saying?
Joe: Exactly.
Derek: Okay.
Right.
Joe: So, you wanna put them off because there’s no reason to say, “Oh, we’ll prove it
later.”
Derek: Yep.
And, again, attorneys should be doing this.
Not the marketing manager…
Joe: Well, right.
The attorneys wanna be doing the appropriate investigation just to make sure there’s
nothing squirrelly in there.
Derek: Yep, right.
But, I mean the letter back to their attorney should come from… because I know some marketing
managers might go, ” Oh, I’ve got this.”
Or respond back and say “No, you opted in here.”
That should always be passed off to council.
Joe: Exactly.
Exactly.
Particularly if they’re sending the letter by council, right?
And then you want to get the insurance company involved, if there’s a chance for coverage,
right, because…
Derek: So, there might be an issue.
That’s when you involve…
Joe: Right, because some insurance are so-called claims-made policies, and they require timely
notice.
So, you don’t want to see how the letter writing campaign shakes out, because if you
miss the deadline to put them on notice, and there was coverage, you risk losing that coverage…
Derek: Oh, interesting.
Joe: …just because, “Oh, I’ll just wait until they file a complaint.”
Derek: Yeah, that could be a year later, and now you have a problem with your insurance
company.
Joe: Exactly, because the TCPA gives the plaintiff four years to file.
Derek: So, they might send the letter, and, you know, some of these professional plaintiffs…
Derek: …send a lot of letters.
Joe: …send a lot of letters, right?
They have a lot of phones, they have call logs.
They’re just dashing these off, right?
So, they may not get around to suing you.
I’ve had clients that get sued two years later.
Derek: Oh, wow.
Alright.
Joe: So, you don’t want to not tell your insurance company because it hasn’t materialized.
Some people think, “Well I don’t want to tell them, because it’s going to hit
my claim history.”
Derek: Yeah.
Well, that’s not worth it if there would be a claim in the future…
Joe: Exactly.
Derek: …and they wouldn’t defend you.
Joe: Well, right.
There’s a misimpression about the extent to which just putting your carrier on notice,
actually affects the claim history and the extent to which it hits the premium, right?
Derek: It affects how much you’re paying.
Joe: Yeah, exactly.
Right, if your premium goes up a dollar, is it worth preserving…
Derek: Exactly.
Joe: …a million dollars of coverage?
Derek: Yep.
Joe: I would think so.
So, subject to, you know, crazy circumstances, I would put the carrier on notice, and then
make sure that the people who may have access to those records know that the records are
being preserved, and they shouldn’t do anything to deviate from that preservation protocol.
Derek: Okay.
Make sure everybody’s on board.
Joe: Exactly.
Derek: Okay.
So, that, include the marketing person.
Like, “Hey, don’t delete any of this stuff this stuff needs to be preserved.”
Maybe even to have backups just to make sure.
Joe: Now, if you don’t have evidence of consent if this person has put the company
on notice that, “Oh, gosh we may have had a campaign that was not complying…
Derek: Had a mistake.
Joe: There was a mistake…
Derek: Yep.
Joe: You know, you do want to circle the wagons.
You know, really quickly get a sense of what the exposure is, and stop any non-compliant
campaigns as quickly as possible, right?
Like…
Derek: So, that wouldn’t be a negative of fixing what the issue is?
Joe: No, no.
Derek: Okay.
Because, I think, some people might be a little, like, “Oh, I cant touch anything.”
If there’s an issue with your system or an issue with compliance, fix it.
Joe: Exactly.
Derek: Okay.
Right away.
Joe: Right.
Right.
No, if there’s a problem, letting it linger is only, you know, magnifying your damages.
Derek: Makes sense.
Joe: Your exposure.
And there are evidentiary rules surrounding the act of taking mitigating circumstances,
right?
They don’t want…if you’re pollution is going into the farmer’s river and you
know the animals are eating it, they don’t want you to keep throwing the pollution in
just because that might be deemed admission.
Derek: Okay.
I think, that was maybe the concern for some brands, is, you know, “Oh, if we change
it that means that we were in the wrong.”
But that’s not the way to go about it.
Joe: You don’t see the UPS driver tenuously ramming the person in the rear end.
Derek: That makes sense.
Joe: That’s just not a good idea.
Derek: Okay, so that’s what to do if you are threatened to be sued by a…usually it
comes from an attorney, right?
This would be a…or I guess it could be come from a consumer itself.
Joe: Yeah.
Derek: Okay, so it could be from an attorney or a consumer.
Any other points up until they actually file a law suit, what you should be doing in terms
of the threats that you would receive as a text-message marketer?
Joe: I mean, those are the key things.
Derek: Okay.
Perfect.
Well, that sounds good.
And, always consult attorneys.
I always say that because, your SMS platform, your agency, most likely is not an expert
in TCPA.
We know enough, but not as much as some of these people.
So…
Joe: Exactly.
Derek: Awesome.
My name is Derek Johnson with tatango.com.
I’m with Joe Bowser from Innovista Law, and he is part of the TCPA Defence Force.
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