[015] Are You Being TCPA Compliant? with Eric Troutman – the CZAR of TCPAWorld

Jason: what’s going on everybody. Welcome to another special episode of the scalable call center sales podcast. So glad that you’re here, this one. I’m going to say, this is going to be a fun one. It’s going to be interesting. And it’s probably going to be scary for call center owners and sales leaders and people who are running sales teams.

[00:00:18] Uh, because today I have Eric Troutman. He is a partner at the law firm of Squire, Patton Boggs, and he is the Czar of TCPA world.com. Make sure to check out that site. I will mention it at the end as well. So he is one of the country’s prominent class action defense lawyers and is nationally recognized in telephone consumer protection act litigation, TCPA, and compliance for the call center industry.

[00:00:44] So we’re going to have a lot of fun, probably scaring the crap out of everybody. Eric, welcome to the scalable call center sales podcast.

[00:00:51]

Eric: Thanks man. It’s so good to be here, Jason, you’ve got a great show. I’m really kind of happy to be. Thanks.

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Jason: So I’ve known about you for years, I’ve followed you and read some of the stuff, not all of it, because you put out an amazing amount of content for anyone who wants, uh, lots of valuable things, make sure to subscribe to your newsletter.

[00:01:11] That’s a shameless plug on your behalf. And I had the pleasure of meeting you recently at some leads, con leads, council, industry events, hearing you speak. We definitely need to talk. And I definitely want you to come on the show when it comes to call centers, telephone sales. One of the biggest things that companies know they should be careful of and either are, or are not actively protecting themselves, would be, you know, the compliance around TCPA, the TSRs, all those things.

[00:01:43] Let’s start with. I guess what your seeing in the landscape of TCPA, maybe a little background on that and kind of what’s the state of affairs with that right now.

[00:01:53]

Eric: Yeah, sure. So one of the nice things about being on your show, Jason is I know the folks that watch this, or are we really smart in terms of being knowledgeable about the TCPA, right?

[00:02:04] These folks run calls. These folks are compliant by and large because they’re looking for ways to be aggressive to drive sales, but to do it in a way where they’re not gonna get shut down one day, right? Like they they’re, this is the long game, not the short game. So it’s really cool to be able to talk to a bunch of folks that I know already know quite a bit about the law, but.

[00:02:23] That’s why I’m here is to take quite a bit and make it really a lot and exactly what you need to know in order to take care of yourself in the longterm. So right now what’s going on. Well, we all know about Facebook, right? We know that, uh, there was a bunch of courts that were saying essentially, any piece of equipment that was dialing from a list of members was going to be subject to the TCPA, which would require you to have express written consent.

[00:02:46] If you’re making outbound calls to cell phones, that includes. B2B and B to C. Right? Let’s keep that in mind. That was the state of affairs. Pre Facebook. Now, the Facebook decision came out April 1st, the United States Supreme court said now, you know, I’m not so sure about that. The statute says that you have to use a random or sequential number generator to either store or produce numbers.

[00:03:09] And we, the Supreme court say that that is actually a requirement of the statute since, you know, that’s what the statute requires. Uh, and that was a, it’s a pretty big change. And so now what I’m seeing is folks are kind of grappling with. Well, what does that leave us? Does that really mean that as long as we’re scrubbing the DMC, that we can just put random phone numbers onto our autodialer and start calling people and cold calling them and trying to pitch our product that way to which I say, you know, if that’s your business model, um, Yeah, kinda that comes with a bunch of asterisks and caveats because you do have to make absolutely sure that the dialer that you’re using doesn’t have a random or sequential number generator for any purpose, for any purpose, not just to create phone numbers.

[00:03:54] Right. And that’s what people get confused. But for any purpose whatsoever. Uh, and so I’d say right now, what people are most grappling with, the big trend that I’m seeing is how do we take advantage of Facebook to deploy consumer outreach in a way that is a consumer friendly way that is likely to drive sales without tarnishing our brand and without taking on too much risk.

[00:04:17] Right. That’s kind of like the big metaphysical question right now. Um, second to that, right? So that’s kind of piece. One is how do we leverage Facebook piece too is directionally. I think it’s the same vein it’s folks trying to move away from prerecorded. Right, which continue to be front and center in the TCPA landscape and moving from prerecorded calls to maybe AI texts, uh, interactions, uh, or, you know, certainly one-to-one texting alerts or of course the live calls being driven by different kinds of technology that don’t trigger the TC.

[00:04:54] Uh, so that’s kind of the big trend I’m seeing from a compliance standpoint inside the call center is like, this is where folks seem to be grappling with. And then of course, in terms of litigation, you know, it’s just important to keep in mind. Even after Facebook, the TCPA continues to drive a ton, a ton of class actions, uh, and these will run the gambit, right?

[00:05:13] Many of them are in fact, prerecorded call cases. Many are DMC cases. A lot of them are coming out of leads, right? Folks that are buying leads, making call center calls to leaves. Um, and, and the leads are turning out allegedly to not be valid. Um, so that’s a big risk area of something that people need to be aware of.

[00:05:33] Right.

[00:05:35]

Jason: Now, when you say allegedly not are turning out to be valid, what do you mean?

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Eric: So, so the I’ll give you a really nice clean example. Uh, let’s pick on our friends at lending tree, who we know are perfectly legitimate company, very upstanding, good company, good folks. Right? Um, I’m seeing allegations that.

[00:05:55] Uh, uh, let elite that was purchased, say by Wells Fargo, from lending tree, right? Wells Fargo pays lending tree X amount of dollars to get a lead from somebody who was interested. It seems in a mortgage and they went on to lending tree and they said, I want to know about a mortgage, send my information to four lenders so they can contact me about a mortgage, right?

[00:06:15] Wells Fargo context, that person seemingly that’s perfectly legal, perfectly valid. Right? You’ve got express written consent. That consumer signed up for it. It calls me. Here’s the problem. The consumer soups, they see lending tree, they see Wells Fargo and they say, Wasn’t me. I didn’t do it. It was somebody else.

[00:06:32] And of course, a lending tree and Wells Fargo are going to require there to be third-party verification. There’s gonna be a true Naya or trusted form on that. Right. But nonetheless, these folks are going to claim it wasn’t me banned right now. There’s a petition in front of the FCC, uh, that we helped to bring on behalf of assurance.

[00:06:49] Asking the commission to say, Hey, look, if you are receiving a web form submission, you’re allowed to rely on that in good faith. But until that petition is granted, those cases are going to continue to be filed. And it’s something we’re seeing quite a bit.

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Jason: And so you’re saying on good faith with the or the trusted form, or just on good faith that it was generated with

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Eric: written consent.

[00:07:10] So the petition doesn’t require the commission to decide what good faith means. Right. We didn’t want to set a standard that was, you know, not that many industry participants couldn’t couldn’t reach right. So, what we asked the commission to do was just say, Hey, look, leave it in the hands of the jury to decide what good faith is.

[00:07:29] You don’t give us a standard. We’ll let the jury decide. What’s good faith. But what we need is actually the ability to even argue that good faith is the standard and folks that are listening. They’re kind of wondering, like what, what, what is he saying? Understand that right now today. If some clown goes on to lending tree and inserts their information, and then they get a phone call from Wells Fargo.

[00:07:53] That guy can say it wasn’t me. I didn’t do it. He can lie. Right. And if he goes into court and convinces the jury, That he didn’t do it. Let’s say he creates an alibi for himself and has his buddy go to the zoo and he’s got a receipt from the zoo and he goes into the judge and jury and says, look, I’ve asked the zoo, here’s this receipt approves it.

[00:08:13] Right. And the jury says, oh, you know, I think he was at the zoo. I don’t think he went on the website that day. There’s no defense Wells Fargo and lending tree in that scenario would have no defense. They would be found liable because you have to have the consent of the actual person who went on the website, who uses the phone and here that person’s claiming it wasn’t him.

[00:08:34] So what we’ve asked the FCC to do is clarify, even in that situation, even where the guy says, I went to the zoo, there’s still a defense where the caller’s like, Hey look. We thought it was legitimate and there was absolutely no way for us to know that it wasn’t legitimate. And because we believed in good faith, that’s the legal standard in good faith that it was real.

[00:08:56] And there was no evidence whatsoever in our possession that it wasn’t real, even though the guy claims he was at the zoo, we’re still allowed to have made those phone calls, at least until we were told to stop calling. Now, you get told to stop calling and you keep calling and while that’s on you, but until that point.

[00:09:11] We’ve asked the FCC to clarify that you’re allowed to make those calls. You’re allowed to rely on web form submissions, which are really the backbone of e-commerce in this country.

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Jason: Yeah. So, cause I’ve heard this term a bunch, but I feel like there’s not gray area to it, but there’s maybe it’s a clear definition.

[00:09:30] Maybe it’s not express written consent when it comes to like calls, texts, emails, things like that. Is that clear what that is or. Like specific, like independent

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Eric: for each thing, no express written consent is actually one of the few things that are very, very clear in the law. And the reason why people kind of suggest it’s not it’s because they don’t want it to be clear.

[00:09:52] And I’m just going to be honest with you, right? The express written consent rule is not. Right. It’s not like, well, Hey, the consumer knew that I was going to call them. So no big deal. Now it is an extremely ticky tack rule. There are nine things that have to be in an express written consent disclosure in order for it to be enforceable nine.

[00:10:14] And a lot of those things like mentioning auto dialing technology or promotions or telemarketing or things that people don’t want to put in a disclosure because it will make it unlikely that people are going to click on that button. Cause those ugly, ugly words that we hate are in there, but guess what they have to be in there.

[00:10:30] Right. That’s what the FCC has sent the, the, the rule around express written consent. Is, I mean, in my opinion, at least it’s fairly abusive. I mean, there’s just no need to go that deep in obtaining a disclosure, a consumer is smart enough to be able to say, yeah, I want a phone call. Right. And that should be enough, but that’s not what the law requires.

[00:10:51] And so when you hear confusion about what, what the law requires. It’s largely just wishful thinking, right. Is people saying, do I have to do this? Do I have to do that? Can I trim it down? Can I cut it down? And sometimes right. Lawyers, particularly in-house lawyers who, who don’t want to be standing in the way of sales will say, yeah.

[00:11:10] I mean, probably you can do that or it’s not clear. I mean, look as outside counsel, right? I’m divorced from all of that. I get paid to tell you the truth. Right? That’s my job is to be your counsel. I got to tell you. You gotta have all the language in the disclosure. And as I like to tell people, and, and you know this better than I do Jason, right?

[00:11:26] The more direct and honest you are with the consumer, the more transparent you are with the consumer, the better qualify that lead is going to be in the better experience that consumer is going to have. So to me, there’s no reason to hide it, but a lot of folks don’t like to have with that link.

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Jason: Yeah, makes sense.

[00:11:44] And that does answer why in my mind, I’ve heard it it’s very specific, but yeah. And it also is like, well, what is express written consent? And did you check all those boxes? Which makes sense if you have those nine different things and of course. For the good actors in the industry that are making calls that are generating, are buying leads and then calling those consumers who actually want it to be called.

[00:12:07] Then it’s frustrating obviously to have to have all those disclosures, the trade-off is that it’s the bad actors that always get to them. Kind of scenarios that then caused these extra disclosures, right? It’s the ones that are just hammering on people.

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Eric: Yeah. I mean the, the FC FCC created the high, high standard, I think too, as you were pointing out to prevent people from slipping, right.

[00:12:33] If you’ve got a big standard or a low standard, you know, people are always going to ride the line, especially the gray or black hats, right. They’re going to ride the line. And so when the FCC created this high, high bar, It did it fully understanding that some people are going to try to slip and Ethan, I think they assumed that all look, even if you slip a little bit beneath it, right.

[00:12:49] At least it’s still going to be pretty good for the consumer, but don’t slip beneath it. Right. You’ll get yourself sued. You’ll get yourself into a big class action. And what I hear all the time, and it really kind of makes me sad is my clients will come to me and they’ll say, well, Everybody else is doing this right.

[00:13:05] My competitor is doing this. Um, are you sure I can’t do it? And I say, you can’t do it. Right. You know, if you’re speeding down the highway, you get pulled over, you get a ticket. You’re not going to get out of it by saying, well, everybody else was doing it too. Right. That’s not, it’s not a defense legally. Um, but what you can do, and I tell people this all the time, like if, you know, for sure the fact that your competitor is violating the law and you’re doing it the right way, You can Sue them, you Sue them for failing to comply with the law.

[00:13:33] It’s unfair competition, right? In this country. Everyone has a right to compete on the same playing field, right? If you have to follow the law, so does everybody else. And if somebody else isn’t following the law, you can Sue them and guess what? You can actually recover. Every single dollar that they’ve made by cheating, right?

[00:13:50] There’s no cheating allowed. There’s no cheating allowed in the market. Um, so I was just something to keep in mind, but either way, just understand that just because somebody else isn’t following the law, that’s not a justification or an excuse for you. So

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Jason: I don’t know if you want to make your standard disclosure about none of this being legal advice at this time.

[00:14:08] But, um, my next question is going into, so after Facebook with things coming up, where do you see the company. Should be careful other than what you said about the random numbers, but like, say for the rest of this year, whether it’s at the federal level or the state level.

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Eric: Yeah. Well, look, I mean, everyone knows it’s not legal advice.

[00:14:27] Nobody gets legal advice from a podcast. Um, I, it always makes me chuckle when people like have these long disclosures on these things. Cause I’m like, come on you, you know, better. Um, but, but look, hope people would know better. I mean, yeah, one day the FCC will come out and put, it require a nine part disclosure, uh, for people doing webinars, but that hasn’t happened.

[00:14:46] Um, all right, so, so look again, you know, big, big things to be concerned about post Facebook, right? Obviously you have to understand what your equipment is doing. If you’re making cold calls, now you’ve gotta be scrubbing. The DNC that DNC list is more important than it’s ever been before. It really is critical to understand the DMC rules and to understand that there’s a lot of litigation around that.

[00:15:05] Okay. One two, again, directionally prerecorded calls are death, move away from those go into triggered or human. Uh, excuse me. I mean, yeah. Human selection dealers are really the future, um, stuff like the customer dynamics, safe select dialer that I helped us. Really good equipment. There’s a lot of, you know, those are the kind of pieces of equipment should be thinking about moving toward gravitating toward, in addition to, uh, the, the AI, uh, text engagement, which is really, I think, very powerful stuff and in perfectly legal post Facebook.

[00:15:36] Right. Uh, so that’s the sort of stuff you should really be kind of thinking about. Um, and then you just have to understand though that if you are still using prerecorded calls, if you are calling numbers that are on the DMC without an EBR, without that relationship or that inquiry. I mean there’s personal liability.

[00:15:51] All right. And that is still a big fight when you’ve got CEOs of big companies that are named in per personally named right in these, in these, in this litigation, you know, people seeking $50 million against the CEO of this company or that company and the courts allow that to happen because the TCPA is a very special little snowflake of a statute it’s different than 99% of the lot out there.

[00:16:13] Where if you do something for your employer, Right. You can’t be held liable. No, your employer’s liable. Not you. That’s crazy. Right. If I do something on behalf of, you know, I work at target, I, I do mess something up. I mean, I don’t get sued. Target gets sued right under the TCPA. Now you get sued and, and that’s, that’s the issue, right?

[00:16:31] The employer. And the CEO and the compliance officer and the guy that made the phone call and the guy that bought the list and the guy that loaded the list. Right. All of them three personally sued. And that’s what makes this statute so gross. I mean, in addition to all the other reasons why it’s for us.

[00:16:45] So again, keep that in mind and then that’s the federal statute, right? And then the overlay now, I guess it’s the underlay, uh, in addition to the federal statute or the states, and we’re not going to go state by state because that’s boring, but Florida. My goodness, Florida, that little appendage at the bottom of this country just keeps causing trouble.

[00:17:05] And the, uh, the great state of Florida has now passed away. They’ll hopefully, you know, about this, that essentially says, if you are making a marketing call to somebody in Florida and you are using an autodialer, which by the way is a different definition of autodialer and includes any system that dials automatically any system that dials automatically, or any system that automatically determines the sequence of numbers.

[00:17:27] To be dialed, even if they’re manually dialed, think about that, right. Click to dial systems where the system is determining the sequence of numbers to be dialed is an autodialer under the Florida definition. If you’re using any of that equipment, any of it, do you have to have express written consent for a marketing call, even if they’re existing customer, even if they’ve made an inquiry, even if the guy calls in and says, Hey, tell me about this.

[00:17:52] I gotta run. Call me back. Yeah. To have express written consent, or you cannot call that person back unless you’re using again, one of those human selection systems or your finger, right. That’s it? That is, that is your only defense. It’s nuts, it’s bonkers, but that is the law. There’s a private right of action there.

[00:18:12] You can get sued. Just I can get sued in federal court and in Florida, you’re not going to be in federal court. It’s a state law. So you’re going to be in some like Everglades, swamp courthouse, getting sued for all your personal wealth. Uh, it’s a, it’s a, it’s a terrible situation. So if you’re calling consumers in Florida, take it very, very, just, just don’t call it consumers in Florida.

[00:18:32] I’m kidding. I’m kidding. You have to, I know you do, but get the right equipment before you. Okay.

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Jason: So to clarify with this Florida one, which, you know, a lot of times it starts in one state and then it’ll spread, uh, where others will adopt it. So who knows where that’s going to go? But what you’re saying is if I’m manually hand dialing, like I’m punching in the numbers just manually to call somebody, you’re saying I can leverage an existing business relationship, but I don’t have to have express right.

[00:18:59] Consent.

[00:19:00]

Eric: That’s correct. So you’ve got to have understanding in Florida, right? They’ve also got their home state specific. Okay. So you’ve got federal DMC and now you’ve got the state. It’s like the department of agriculture. I mean, come on. Like, you want me to take you seriously? When I have to check the department of agriculture, do not call list.

[00:19:18] It’s like, it’s like next to the Florida grocers, you know, citrus Grove mandate, and oh, next to that is your telemarketing do not call list. It makes no sense at all, but that’s what you have to do. Um, so if, if they’re not on the Florida DMC and they’re not on the federal deans, And you’re using either a true, you know, du, du, du, du, du, du, du, or like a human selection system.

[00:19:38] Let’s say select. Then you can, you can contact those individuals if they’re not on those lists without express written consent. Okay. Got it. Otherwise you need that express screen. Okay, so you can’t. Yeah, you can still cold call even in Florida, but you just have to be super, super careful about it. Hey,

[00:19:59]

Jason: it’s Jason here be right back to the podcast in a moment, but first are you ready to help your insight sales team close more deals?

[00:20:05] In my experience, there’s a certain percentage of your team that acts more like order takers than sales professionals. The first step to creating a scalable sales team is to equip your reps with the right mindset. And proven strategies to transform them into quota breakers, to build a team of authentic persuaders that will crush their goals.

[00:20:23] Email [email protected] or go to www.Cutterconsultinggroup.com. Now there’s another piece. And I heard you talk about this during the industry impact events that we were at. Uh, and I heard somebody else mentioned this as well, and you slipped it right in there in the part where you’re talking about, where you speak to somebody and they say, Hey, I’m busy.

[00:20:49] I’m driving. Can you call me back? Or another scenario? I heard that scared the crap out of me when I heard this, which is you have express written. For this phone number for this person, you talk to them, they say, Hey, by the way, uh, I have a bad connection. Here’s a different number. Can you call me back at this number?

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Eric: And then that

[00:21:08]

Jason: is actually. And opening your up, right?

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Eric: Yeah. And this is exactly the sort of tricky stuff, right? That, that TCPA world creates because in both of the scenarios you just gave, guess what? You don’t have express written consent, right? You don’t have it. Express written consent is phone number specific.

[00:21:27] It does not attach to a human being. So if a human being gives you a different number, you don’t have express written consent to call that. Isn’t that crazy. And if the person calls inbound and you talk to them and they’re like, Hey, I can’t complete this. All right. And I’ll call me back. You don’t have express written consent to call them back.

[00:21:44] So what, what many of my clients have done? And I think a lot of call center frankly, struggle with is how do we operationalize a situation where we can get that express written consent? Obviously, you, you can understand in both of those scenarios, you can call that phone number. You just have to do it manually, right?

[00:22:01] You have to make sure you’re using your finger or you’re using one of these safe systems. That’s it? Okay. Those are the only two ways you can call that number back until you get express written consent. If you want to get express written consent, you can do that, right. You can do it, driving them to, Hey, go to the website, click, you know, go through right now, click on the button.

[00:22:18] You can say, Hey, I’m going to send you a text message. Right? A lot of my clients will deploy a text message. Um, when the text message, you get the permission to send them. One text, the text goes out and it’s essentially got the express written consent disclosure in the text message. And if they respond, yes, then that’s going to constitute a signature.

[00:22:34] Right. And that’s going to give you that express written consent. Um, and the other thing you can do is try to, um, cabin and determined early in the phone call what information the consumer wants so that you can justify calling them back at the phone number to provide information. Not sales. Right? So as an example, they call in like, Hey, how can we help you today?

[00:22:57] Oh, I’m interested in a mortgage. Great. What kind of a mortgage I was interested in a 30 year fixed mortgage. Great. Are you interested in terms, are you moving forward? Well, probably just terms. Great. You start continuing on. Uh, and you say, Hey, if we get disconnected, can we call you back to discuss exactly what it is if you’re looking for sure.

[00:23:12] Right now you don’t have express written consent at that point to call them back about just any. But because they’ve made an inquiry regarding a specific products within very specific, like a 30 year fixed, you can probably make a phone call back to them, limited to that specific purpose to facilitate the transaction units.

[00:23:30] Probably now here’s where I will say get legal advice there. Right? Cause that’s kind of a tweener. You gotta be real cautious and be very, very, very specific with your scripting in order for that to work. But it can’t work. So there’s ways to kind of get over this hurdle, but just understand, you cannot just take a phone number from inbound lead and throw it on your dialer and think you’re safe.

[00:23:50] You know, like you will get yourself killed and people frankly often do get themselves in trouble.

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Jason: And again, I am just going to reiterate it because when I heard that, and I was just thinking of all the centers I’ve worked in, inbound sales, inbound, customer service, whatever that looks like, where that person and what you’re referring to, where this is most likely going to get people in trouble is the professional litigators who are trying to catch companies and then go after them and, and set up these traps for them.

[00:24:19] But if you’re listening to this and you have a call center of any type and you’re taking inbound calls, And then you could see this pattern, make sure your agents have a process and you have something in place because it won’t take many of these for it to really suck.

[00:24:35]

Eric: Yeah. And these, you know, these manufactured lawsuit plaintiffs, sorry, I don’t mean to cut you off, but these guys they’re still out there.

[00:24:40] They’re still hunting. It’s gross. You know, I had the old stoops case against Wells Fargo. That was my case. I thought I shut it down. I thought I ended manufactured loss suit scams forever. Uh, in the stoops case where I got the court to throw her out of court and find that you have no standing, if you’re trying to create a TCPA lawsuit, it was the first ruling in the country that made that finding.

[00:25:02] I was so proud of myself and I really. It was done like this is it like if I, if Eric Troutman Trump did one good thing in this life, he ended scam TCPA lawsuits, but no, they just keep right on coming. Cause the defense lawyers, frankly, haven’t done a good job of using my case to their advantage. And as a result, the cottage industry of suing people and setting up these lawsuits is more powerful and bigger than it’s ever been before.

[00:25:25] So you just have to be here.

[00:25:27]

Jason: So on that note, um, cause I was going to talk about other states, but let’s, let’s stay on that. So manufacturing. TCPA lawsuits. Uh, most everyone I know has experienced this or seen it at some point, but in case somebody hasn’t, what does that mean? What does it look like? And what is your unofficial suggestion or what do you tell your client?

[00:25:51] What path do you take people down? If they get one of those?

[00:25:55]

Eric: Well, look, you know, manufactured lawsuits generally don’t happen to my clients because people know who my clients are and they’re not going to mess with the czar by and large. Okay. That’s, that’s just my opinion, but it also seems to be practically, practically.

[00:26:08] True. So, and he also wants to understand that there are. There’s a wide range of scams out there. Right? So, so stoops was the person that I dealt with in the case. I was mentioning for Wells Fargo. And, you know, whenever you think of Wells Fargo, they did a great job in that case because they could have written a check to this lady, right?

[00:26:25] So-so they, she had 86 cell phones, 86, and she obtained phone numbers from Florida. Uh, this was back in like 2016. There was still kind of the, the ripple effects from the, from the great recession. And she knew that people in these area codes, right. Where, where she was getting these phone numbers were hit particularly hard, especially when it came to their mortgages.

[00:26:48] And so she would sit back with the 86 cell phones, all with Florida area code. She lived in Pennsylvania by the way, and would wait for the phone to ring. And when the phone rang, um, she’d answer and she’d say, ha ha, who is this? It’s you know, so-and-so calling. Uh, okay, thank you. Click. And she’d just hang up.

[00:27:05] She wouldn’t identify herself. She wouldn’t do anything. She would just take a note. Uh, then she collected about a hundred calls and then finally she’d say a wrong number, click, and then hang up. Right. If, see what would happen. Right. Many times people would keep calling, uh, and then she would go after them for treble damages.

[00:27:20] And she actually testified in deposition, which was the most amazing thing. This was her business. Right. She wanted the phone calls. She bought the phones for this particular purpose. She was waiting for the wrong member calls. And when she said wrong number, or if she said, Hey, don’t call me anymore. She’d say it like kind of lightly and hope that she would just get ignored.

[00:27:38] Right. Because she wanted more calls to come. And then she would say, Hey look, I told him it was wrong number. They kept calling. So that’s treble damages, right? She admitted to all of this, right? So can we take this to court? And we’re like, your honor, you cannot let this happen. Uh, and the judge agreed and the judge ruled that we’re somebody engages in this sort of conduct and specifically take steps in order to create a TCP lawsuit that they can’t Sue under the statute, because the statute is designed to help people who are actually being harmed by calls they don’t want.

[00:28:09] And these people do not. Make it into that category using legal speak. They lack Prudential standing because they’re not within those zones interest of the statute. Again, his ruling came down to 2015. I felt very good. I felt like man, like I haven’t really I’ve changed the world. Look at what I did and what happened was, you know, other people continue to bring lawsuits of this belt.

[00:28:34] Maybe they’ll have 86 cell phones. Maybe they only have 25 cell phones. Right. But what was going wrong is the defense lawyers were taking these cases and they would go at the pleading stage right before the deposition, before the hard work of discovery, they go to the pleading stage and they would just basically say, Hey, look, judge, this guy has filed a hundred other lawsuits.

[00:28:52] So therefore. And the court would say, and frankly, quite properly. Hey look, just because he’s filed a bunch of other lawsuits doesn’t mean that this lawsuit isn’t valid, right? You haven’t shown me anything about what happened here. What the guy did that he actually invited or invented the law. All you’re saying is he sues a lot.

[00:29:11] And you know, in this country you’re allowed to Sue a lot, not to say you should, but you know, you’re allowed to, it’s not as if that is by itself, a bar to future suits. And so very soon there became this kind of rift in the law where if you did your homework and you did a good job and you took discovery and you put them under oath and you grill them it, yeah.

[00:29:29] That position, you could get rid of a case otherwise, because you’re going to be stuck in cases. And unfortunately, now my case, the big stoops cases become kind of a minority. Because of all of this, frankly, bad lawyering has led to this big body of case law that says, you know, these scam calls can go on.

[00:29:44] But to answer your question directly, which is if you were a victim of one of these abusive baloney, you know, repeat player, manufactured lawsuit, You have to understand you can’t just say, oh, it’s, you know, sewing. So, so what’s the skin, right? That’s not, that’s not going to get it done. Right. You have to actually do the hard work of taking a deposition, sit in the, the, the lady or the guy down under oath.

[00:30:07] And grill them and saying, you know, how many phones do you have? What happened here? Right? Wait, when you identified yourself as Joe blow, instead of by your real name and the recorded call, it’s a lie. You lie. Right. And you lie all the time and you’re lying right now. Right? You’ve got to go after these guys and you’ve got to get them to admit that they weren’t one of the call.

[00:30:27] Of course they wanted the call. You file 200 lawsuits. You’ve got 25 cell phones. You, you spend half your day on the phone talking to, to mortgage. You wanted the call because you wanted to bring this lawsuit and try to make some money. Uh, and if you can develop that kind of a record, you go to a court, right?

[00:30:45] The courts, get it. The courts aren’t dumb. Right? I mean, again, I can’t emphasize enough if you’ve got good counsel, that’s doing their job. Right. And oh, by the way, you have to be willing to pay for it. Right. You go to that stoops case. I mean, Wells Fargo could have settled that case because sell that case for a 10th of what they ended up spending to defend it.

[00:31:04] Right. And that’s the complicated thing for many people. And that’s why these scams live on is that so many, so many call centers, so many callers, so many sellers and marketers, they are willing to write a small check. Rather than write the big check to see justice done. And that’s fine. I’m not going to cast dispersions on anybody out there.

[00:31:24] That’s like, Hey look, man, it’s dollars and cents of running a business, not here to save the world, I’m just here to, to move on. Right. I get it. That’s okay. But then by the same token, don’t complain when you see a bunch of manufactured lawsuit plaintiffs out there, because that’s why they,

[00:31:39]

Jason: yeah. What does that quote it for evil to exist in the world?

[00:31:42] It takes good people to just do nothing. Yeah.

[00:31:45]

Eric: That’s all it requires, man. That’s all it requires. That’s

[00:31:48]

Jason: it. So let’s go back to state. So obviously Florida is the big one. That’s in the recent news and we’re recording this, you know, in middle of July, you know, relative to when these things are happening, any other quirky, weird, dangerous state, specific things popping up that could catch

[00:32:06]

Eric: fire.

[00:32:08] I mean, look, the states are always kind of a hodgepodge. Uh, South Carolina has got, uh, believe it or not of all the states South Carolina has probably got the second, most robust. Private right of action out there. It’s a big debate as to whether or not there’s class actions available though. So that’s why you don’t care too much about it.

[00:32:24] But South Carolina is a dangerous state. That’s the two ships. I mean, they’re, they’re a masters don’t call Massachusetts, um, New York and California both have robocall bills, neither of which have meaningful private rights of action. Um, but just understand that you might get a phone call from the AGS office out there.

[00:32:40] Indiana has strangely enough probably had the most active, uh, state ag in the entire nation. They’re quite aggressive. Um, so that’s another state you have to be aware of. Uh, Texas of course has the public utilities commission, licensure requirement. Uh, I mean, look, the states are a hodgepodge mess and, you know, dnc.com has some great resources to help you stay abreast of all the states.

[00:33:04] You can always call me at some point, I’m going to put together a matrix. Um, for every single state, but, you know, frankly, we’ve got billable work to do so, you know, it’s going to be a while, but just understand that the states also, um, are very, very messy. So you just, but Florida is the biggest one. And I can’t emphasize this enough because there really is a very clean.

[00:33:25] Private right of action. And that means that people can Sue you. Uh, and there was just yesterday. Yeah, we’re recording this on July 15, just yesterday. July 14 was the very first class action filed under that state statute. And remember that state statute just became effective July one. Okay. So it took a grand total of two weeks for the first class action to be filed.

[00:33:45] So litigation is live and I predict you’re going to see probably by the end of the year, you’ll see over a thousand filings down there and next year you’ll probably see close to 5,000 filings. So take it very, very seriously.

[00:33:57]

Jason: Wow. That is crazy. I didn’t realize that. So one of the things from your perspective, especially being in this, I’ll say this industry focus.

[00:34:09] On the legal side, right? The TCPA that compliance piece for call center related activity is that you obviously have the legal side. There’s the technology side, which you’ve mentioned several times of like what people could use to stay safe, what will keep them out of harm’s way the most. And then also there’s the fact that you’re seeing operations all over the place.

[00:34:31] Right? And so yours might be a compliance thing, but you’re seeing marketing, you’re seeing sales, uh, you’re seeing enough of it. What are you seeing? That companies who are doing well this day and age on the sales side. So not so much like this TCPA compliance, but I’m just curious because you have this insight, potential insight into what people are doing.

[00:34:50] Well, sales related, marketing related, what’s not working well, like outside of the compliance.

[00:34:57]

Eric: Well, look, I, I don’t want to go or anybody’s socks. Okay. Um, but I, but I see, it’s not a surprise, right? The folks that are most kind of discerning at the top of the funnel are going to see best conversion. You know, as, as, as the consumer journey kind of goes through to the sales cycle and that’s that shouldn’t be a surprise to anybody.

[00:35:16] Um, and that’s why I say like, you know, if you’re out there buying, you know, multi vertical, Right. You know, co-reg stuff. And then you’re wondering why you’re getting sued and it’s not converting. I mean, I don’t want to go anyone talks, I don’t want to, you know, say anything you need about some of these products.

[00:35:32] I, I mean, you just, you have to be smart about what you’re buying and you have to be smart about how you’re leveraging your existing tools, um, in light of the leads that you have. Um, but you know, kind of setting all that aside. I have been moved, um, and very impressed with how. Um, responsive. Many of my clients have proven in terms of taking my advice in operationalizing, um, compliance, right.

[00:35:59] Really operationalizing compliance and seeing it not ultimately hit the bottom line. I hear all the time. Right? All the time, Eric, we can’t do X. We can’t do Y because it will kill conversion. It will really hurt us. We, we ran some beta tests and, you know, if you, if you put the disclosure above the button, you know, we’re going to drop 300.

[00:36:19] And, you know, I hold firm and I’m like, I love you guys, but this is the law. And if you don’t follow the law, then you’re in trouble and they’re like, fine. They do it. And then, oh, lo and behold, that didn’t hurt conversion at all. Um, or they actually saw, you know, a profit margin increase, right. Because they couldn’t buy it.

[00:36:36] Yeah. As many leads about less leads and I’ll show, it turns out that the leads that they were buying were better quality actually converted better and actually made more money, at least as percentage. Yeah. So, um, you know, to me, innovation, right. And operationalizing, um, compliance. That’s one of the real geniuses to let me just say that, right?

[00:36:53] Like to me, the difference between a call center operator, um, or, you know, or depending on how large your company is, right. Somebody that’s in charge of operations. Um, that, that throws up their hands and discussed it and it can’t solve the problem. Um, and just, you know, blames legal for not allowing them to make sales on the one hand and the call center operator that looks at it, looks at it sideways and comes up with, I mean, I got to tell you, I mean, I can’t tell you some stuff because you know, it’s private, confidential information than I know it because I’m their lawyer, but I’ve seen some really cool innovations.

[00:37:25] Wow. I, would’ve never thought of that. If you came up with that and it’s perfectly legal and you run with it, big guy and, and, and, you know, lo and behold, it makes them even more competitive in the marketplace when it should have made them less competitive. Um, so you know what I would urge all of you is to understand that if you run into a compliance roadblock, a compliance challenge, It’s a challenge, right?

[00:37:44] This is where you put your thinking cap on. This is where you solve it. Right? You, you, you do something that’s illegal and you get yourself good counsel that can help you engineer to yes. And they can help you right. To look over your shoulder and in project manage. But ultimately like to me, It’s that old phrase, right?

[00:38:01] Crisis is opportunity, right? It’s like, if you are the smart guy or gal or guy that you pretend to be, you can get around whatever roadblock is in front of you. And you can think of a way to make your product even better. Right. It’s like, I’ve got these kids and they’re always building these Lego towers because they’re brothers and they love each other, but they hate each other.

[00:38:20] They always knock down each other’s Lego tower. And I tell them every time, like don’t, don’t cry, don’t throw up. Build a better Lego tower. Now you’ve got, you’ve been given an opportunity to start a new and learn from what you did in the first instance to make one even better than you had it before. And that’s the way I look at call centers that are very successful in sellers and marketers generally that are their most successful are the ones that look at these roadblocks and they say, I’m going to engineer around it.

[00:38:43] And at the end of the day, I’m going to build my core operations in a compliant way. That’s going to drive sales and make me even more successful. And in the legal.

[00:38:51]

Jason: I love it. And the emphasis too, on the fact that you can do that, be both compliant, operationally sound and profitable. Right? I see that same thing where there’s a lot of companies who think it’s either, or either I could sell a lot or I can be compliant, but I can’t

[00:39:09]

Eric: do both.

[00:39:09] No, that’s just dead wrong. That’s just dead wrong. I mean, just, you know, trust me. That’s just not true. It just is.

[00:39:17]

Jason: Yeah. And to me, that’s really the old school sales model with the salespeople who just want to sell and just let them do whatever they want to do in order to, to make the bell ring and, and get someone to sign on the dotted line.

[00:39:29] Um, and then that’s just asking for trouble longterm, right? Like the clients who get enrolled that way, aren’t probably going to be happy term short term. It looks good on paper, but long-term, it’s not going

[00:39:39]

Eric: to work. Yeah. Completely agree.

[00:39:42]

Jason: All right. Well, I appreciate you being here and sharing all this.

[00:39:46] I’ve heard you speak other times. And it was way scarier. When I heard you talk, this didn’t feel as scary, maybe it’s because I’ve heard it over and over again. So, you know, it’s a, I’m used to it and I know these things are important for people listening. Obviously, hopefully they got some value. I know the biggest thing for people to do is go to TCPA world.com and you’re the SAR of TCPA world.

[00:40:10] So go there. I know again, I mentioned this in the beginning. Amazing email is to join so much content. I’m always amazed at how much great stuff comes out. It’s not like, Hey, by the way, like here, check out these things. It’s like, here’s a breakdown of everything and the other places, content. I know that’s the main thing.

[00:40:26] Any, anything else going on that you

[00:40:27]

Eric: want to talk about? No look, I mean, let me just say the TCPA world moves so quickly and the reason that it didn’t seem scary this time is because I didn’t talk about the scary stuff. Right? I didn’t remind everybody that the TCPA is the single largest cash cow in the history of litigation in the United States.

[00:40:45] More millionaires have been made at the plaintiff’s bar by suing them to the TCPA than under any other statute that there’s $500 per call up to $1,500. If you violate the statute, class actions are available for your statutory look back, which means if you think about all the calls you’ve made over the last four years.

[00:41:03] You violate the statute today and get sued today. Every single one of those calls could be an issue for years worth in one lawsuit at times 500. How many calls have you made in the last four years? Multiply that times 500. That is your potential exposure. If you violate the statute today, Don’t violate the statute, tens of millions, hundreds of millions, billions of dollars.

[00:41:24] You could be personally liable for personally, not just your company. You personally, it’s a scary as a guest. And when you recognize that this is also a huge violation of the first event. It’s just a mess. And that’s why, frankly, I’ve dedicated my life to this area of law. I just think it’s such an interesting area of law.

[00:41:41] It moves so quickly. The stakes are so high and I don’t just mean the stakes from a monetary perspective. I mean the stakes from my first amendment, freedom of speech perspective, uh, it’s an incredible area of law to be a part of. I’m honored, always to be the zone. And TCPA world.com. I created it to make sure that people were aware of it.

[00:41:58] How incredibly important this area of law is, how fast it moves. There are no barriers to content. You don’t have to sign up for anything. You can always just go to my website completely free. I don’t track you. I don’t sell your data. I don’t do anything. I just give you completely free content. No strings attached, like none.

[00:42:16] It’s I tell people all the time. I probably have the website that drives the most traffic on the planet that doesn’t have a privacy policy. I don’t have them because I don’t need one. Cause I don’t do anything with your data. I don’t do anything. Um, so go read, enjoy. Um, I break down every case every day, um, to make sure that everyone’s always informed again, this place moves.

[00:42:38] Uh, just a million miles an hour. It’s the fastest area of law that there is. Uh, it’s just, it just never stops moving and evolving. And again, the stakes are so high that you have to inform yourself, especially if you’re in the call center space. That’s why I like, I, like I said at the start, what I like about your audience is.

[00:42:54] I know you folks already know a good amount of this, right? I’m here to help you go from where you are now to completely compliant, right? And you can arm yourself with that [email protected]. And of course, if you ever have questions, call me up. I always give people like 15 or 20 minutes for free.

[00:43:09] We just talk, just, you know, see what there is to talk about. And if you ever need real legal advice, obviously I’m here. I

[00:43:16]

Jason: appreciate that, Eric. And thank you for dropping that scary nugget there a few minutes ago about the real fines and penalties and what that costs people, uh, dropping that scary one again, Eric, the czar of TCPA.

[00:43:27] Thanks for being here and sharing with the audience.

[00:43:30]

Eric: Absolutely great show Jason, keep it up, man.