S3 E11: Telemarketing Litigation Trends

Audio version

Telemarketing Litigation Trends

Transcript

Jordan Eisner: So welcome to Compliance Pointers, another episode here, fresh off CompliancePoint Exchange, where Darlene and I got to rub elbows with many in our space, clients, customers, prospects, and partners alike. How are you, Darlene?

Darlene Geller-Stoff: I am good. It’s good to see you again. It was nice to spend time with you in Orlando last week for the inaugural CompliancePoint CPX event. It was phenomenal.

Jordan Eisner: Yeah, I had a lot of fun. Of course, you were on a session, at least one that I know of. I was emceeing the event, so we were running around like chickens with our heads cut off. But it wasn’t really a dull moment, I think, the whole time.

Darlene Geller-Stoff: Nothing says fun like hanging out with 200 lawyers and compliance officers. That’s what I always say.

Jordan Eisner: Yeah, there you go. Well, I’m thrilled to have you on the podcast. This was a great idea. And for those of you listening and watching, Darlene Geller-Stuff has a long career. She started at a very young age. I think you were maybe not even a teenager yet, right?

Darlene Geller-Stoff: That’s my story, and I’m sticking to it. That’s absolutely correct.

Jordan Eisner: Right. 30 years experience. She works for CompliancePoint slash PossibleNow’s litigation support services where they provide consulting support, expert opinion for cases related to contact center operations, privacy, and TCPA issues.

Some cool fun facts that I didn’t know about you, Darlene, as a member of the association’s legislative committee. you were actually involved with the development of the Telephone Sales Rule, right? The TSR by the FTC.

Darlene Geller-Stoff: That is correct. I was on one of the original committees regarding the Telephone Sales Rule. Yes, that was, gosh, probably at a time when the only thing bigger than my shoulder pads was my hair. So going back just a few years there.

Jordan Eisner: Adding comedic lines to also your resume here. So there you go. And you participate on the task force that oversaw the development of the TCPA.

Darlene Geller-Stoff: That is correct. And actually worked with the American Teleservices Association. I’m a founding member of ATA in 1983. And we actually developed kind of the telemarketing good seal of approval. back in 1987, I want to say, which was called Telewatch. It did not take root, but it was a first of many efforts to self -govern the telemarketing and lead generation and call center industry.

Jordan Eisner: Yeah. And then ATA became Pace, right? And then Pace did the SRO. I’m sure you probably had a hand in that.

Darlene Geller-Stoff: Absolutely. Absolutely. We’ve seen a lot. And, you know, SRO for teleservices has had a long journey. I wish that we could have been more successful, but there’s a lot of moving parts to really successfully navigating and instituting an SRO that has teeth.

Jordan Eisner: Yep. Agreed. So we had a hand in that ourselves.

Darlene Geller-Stoff: Absolutely. I believe CompliancePoint drafted most of the auditing materials for the SRO.

Jordan Eisner: And ran those audits. Some of my first work at CompliancePoint was doing some of those audits and then putting some of that information.

Darlene Geller-Stoff: And you were a young lad back then. Yes, you were.

Jordan Eisner: That’s right. There you go. We young lad. I think that’s what you’re going to say.

So today on this podcast, we’re going to talk about Darlene’s work with the Litigation Support Services and Expert Witness Teams. And we’re going to go into some litigation trends that she’s seen. So I think this will be very meaningful and helpful for our listeners.

So let’s start first with that term I just dropped, talking about the Expert Witness Team. What is that? What does it do? Enlighten our listeners and watchers.

Darlene Geller-Stoff: Expert Witness Services provides expert consulting, testifying, and data analysis services for litigation primarily around TCPA class action. And when I say class action, most of the work that we really see and get involved in are things that have really kind of taken flight and are moving towards some significant type of class action or some type of pending settlement.

So we’re dealing with cases that have a lot of complexity and we’re dealing with cases also that sometimes are years and years and years. in the court systems. We actually just settled a case four days before it went to trial and it’s a case that we’ve worked on for more than five years and it finally settled four days before we actually went to a jury trial. So there’s an awful lot of activity that happens at various points during the life cycle of a case and once we’re engaged we provide a variety of services.

We now have half a dozen expert witnesses. We have an engineer on our team now. We have a couple of data experts. We have compliance experts, lead generation. So we have different experts that have different proficiencies. And what we’ve done in the last few years is as a part of PossibleNow, we take advantage of the bench strength that PossibleNow has with their technology strength and their analyst. And we’re able to use a certain slice. of technology resources, data resources, and DBAs. So we really have beefed up our team in the last couple of years.

Jordan Eisner: Yeah, okay. It’s helpful.

And when you mentioned that and some of the data behind it, I know that PossibleNow is making a big effort on the proactive side to work with organizations on their reassigned numbers. And in fact, when I think about… people ask a lot what’s the litigation support services that CompliancePoint and Darlene and team provide. I usually sum it up to there’s reactive and proactive side. CompliancePoint and the practice and the organization I represent is very proactive avoiding these sort of things then your group is really as you just demonstrated a lot of times these have been years in the making cases and it’s more reactive and need to defend and uh put together a case for why an organization perhaps is not responsible for some of the allegations.

Darlene Geller-Stoff: So a point that got brought up during our session last week at CPX25 was, you know, when should you hire an expert? And we, as a panel, talked about bringing us in early rather than later. And one of the questions from the audience was, well, how could you quantify the value of bringing you in earlier?

And that’s actually difficult for us to do because we don’t always know how things settle or what the key issues are that drive towards a settlement. But what I answered to the audience was this. We’re kind of like in a movie like Apollo 13 when they have to solve a problem. And I think it was what, like a file folder and a roll of duct tape, whatever they had up there. And that’s all they’ve got to fix the problem. If we’re not brought in early when discovery is still open, if we’re not able to help influence how subpoenas are drafted, if we’re not able to review interrogatories and participate in that, if we’re not available early on to perhaps observe depositions and participate in that, when we’re hired, which is at the last minute when an expert report is due, we are forced to deal with whatever’s been produced.

And what I think we were able to demonstrate last week was that our team are operational technology experts. We know this business. All of us have spent 30, 40 years in contact centers working with enterprise technologies, working with enterprise telecommunications, working with data, working with compliance, working with reporting. We know this stuff. inside and out.

And so the earlier we get involved, we may know to ask questions that someone who’s an attorney might not know. Someone who’s even just from a defendant company might not know, depending on the proficiency of their team. So we really do bring a very, very high -powered approach to the early stages of any case.

Jordan Eisner: Yeah, I’m glad you added that. On the reassigned numbers, and I was mentioning and I talked about PossibleNow proactively, but you’re seeing a lot of those cases. Those are very common. What are the claims, right? What are the plaintiffs making in these cases around reassigned numbers? I know that was a talking point we wanted to make sure to cover here.

Darlene Geller-Stoff: It’s a very important and timely topic right now. A year ago, we would occasionally see a wrong number case. And we would maybe even use the reassigned number database to look at something. But we’re talking onesies here, just a single number and a particular complaint about a wrong number.

What I now believe to be true is that plaintiffs and plaintiff’s attorneys were piloting some of these cases to determine how they would go. And we’re settling these smaller cases. We now have dozens of reassigned numbered database cases that have been filed just since the end of last year, beginning of this year. So we are awash in them.

And the claims are, you know, very simple. You know, Mrs. Smith, names are changed to protect the innocent here. Mrs. Smith, you know, had the number for 15 years. She doesn’t want the phone anymore. She’s turned in the phone number. Someone else picks that phone number up 45, 60 days later, immediately registers it to themselves on the do not call list and basically waits for the phone to ring or text messages to come in for Mrs. Smith.

And after that grace period is done for companies that are contacting, think they’re contacting Mrs. Smith, well, they’re in for a surprise. And the only way to defend against that is to, I think we heard this resoundingly from a lot of the companies that attended CPX, is to start getting on board with that reassigned number database to ensure that before they launch contact campaigns, to ensure that they are actually using the phone number to contact the person they believe they’re contacting.

Jordan Eisner: So in this scenario you gave, This is very intentional. This isn’t the spirit of the law, which numbers change hands all the time. And occasionally I get a new number and I’m getting calls over to a previous number and it just so happens. And I say, hey, stop. And it builds up. And at some point I can claim damages because the company can’t stop. These people are intentionally. You know, getting these phone numbers to try and receive these calls to past owners of these phone numbers so they can put together a plaintiff’s case against an organization of wrong party contact. And to your point, the way to avoid that is to scrub against a reassigned numbers database.

But how are those professional plaintiffs getting those numbers or ensuring that they’re getting old numbers that have been reassigned to try and catch companies in this trap?

Darlene Geller-Stoff: Well, that is the $64,000 question. In fact, I just got off a phone call earlier today with an attorney who was asking me to conjecture how this might be happening. I don’t know the answer to that yet, but there are certainly a couple of different ways that that could happen.

But whether or not they’re taking a phone number from someone who has released it and then acquiring it and hopefully spinning the wheel that they’re going to be getting text messages and phone calls for that person, or whether they’re deliberately taking phone numbers on, ginning them up, and signing them up to every website and giving permission across every possible opt-in that they could, and then taking that number and passing it along to someone else. I don’t know the methods that are being used, but I can tell you that there are serial plaintiffs that everyone is aware of, and there are more and more serial plaintiffs that are being added to this group of these R&D cases.

Jordan Eisner: And you bring up a good point there because you were talking about these professional plaintiffs and so this is one avenue it’s wrong party contact and trying to get a number that was somebody else’s and have it extend that grace period so they can claim that they were contacted um inappropriately but you also said these plaintiffs will take these phone numbers and they’ll enter them in any web form and lead form and anywhere knows to try and again catch marketers in the in the pitfalls of some sort of mistake with their outreach.

The reassigned numbers database is good to ensure you’re, not to ensure, but to try and avoid, you know, nothing’s 100% wrong party contact. At the same time, our parent company, and I know others, they also provide a litigators list, known professional, you know, litigators, plaintiffs, and those numbers, and can even do some direct connections where it’s never even entering your system. Are you seeing a lot still in that space as well?

Where it’s not just wrong party contact, but it’s beyond an EBR period, or they’re being creative with the opt-outs they’re sending in response via text message or that sort of thing. But they’re being very creative in how they basically catch organizations in these traps.

Darlene Geller-Stoff: Creative is a very good word for that, Jordan. And we’ve had to get very creative as well. kind of have developed our own forensic division where we know how to go back now and delve deeper into the historical tracking of IP addresses, devices, we analyze devices, we analyze their history.
We had a case where a computer was used to create a lead, but the person who happened to just be a serial plaintiff said, I did not create that lead. prove it. Well, we asked for the devices to be turned in so that we could do a forensic review of the devices. And at some point in time, the serial plaintiff said, well, I don’t have the device. I threw it away.

So now we have a lead that was contacted. The person who was the owner of the phone number says it wasn’t me and I didn’t do it. But when it came to having the ability to forensically audit their equipment and their addresses and phone, we no longer had access to that. The plaintiff dismissed their own case on that one.

Jordan Eisner: Ah, there you go. Okay. What other trends are you seeing?

Darlene Geller-Stoff: So, you know, I really have to say right now, wrong number, reassigned number, obviously ATDS, not so much these days. Consent and revocation of consent is a very important topic for us as well.

And also another area that we’ve had to develop a pretty good capability to forensically evaluate kind of the genesis of a lead. And we’ve done an awful lot of work in that area to determine utilizing active prospect and tokens and really kind of going back behind the scenes to determine that.

Also looking at consent and revocation of consent, we do audio analysis. So what we try to do is weave together the entire story of from the first contact all the way through. And we are able to look at call recordings. We’re able to look at call logs. We’re able to look at the token. And we kind of build the entire story of that particular set of connections with that consumer.

Jordan Eisner: Interesting. And I caught you just said, so not a lot of ATDS. Automated telephone dialing system. You’re not seeing a lot of those cases. Why do you think that is?

Darlene Geller-Stoff: It’s just no longer that viable depending on what circuit you’re in. It’s just not that big of an issue anymore. And people have gotten very wise to it as well.

We had a client come to us, and I believe they were a CompliancePoint customer as well, and did a top -down audit of their operation. And this was looking towards one-to-one consent being turned up. And they were preparing for that. the decision to only have live agent calls, no longer using ATDN. They’re just trying to steer clear of it all. They’re a high-volume vendor. They did not want to get cross. They did not want to spend any more time in litigation. And they really decided to develop a simple, albeit less efficient, but more safe system.

So they’re using preview dialing with a manual agent connect, and they’re using only live agents on the phone.

But we’ve also seen some cases, too, Jordan, where they’re saying that a voicemail left was a prerecorded message when it was actually genuinely an agent. So they’re trying that a little bit, too. We got a prerecorded message. We don’t know what you’re talking about. We don’t launch prerecorded messages. But we did have a live agent leave you a voicemail.

Jordan Eisner: Which is different.

Darlene Geller-Stoff: I think it’s a little different.

Jordan Eisner: Yeah. Darlene, I think this has been right in line with what we wanted. Short and sweet and very insightful. We appreciate your time. I’d say as these trends continue, I think our listeners have a lot to go off of this, especially if they’re playing this realm, wrong party contact. So look at the reassigned numbers database. There’s litigation list services out there that they can scrub against. Be aware of opt-outs and replication of consent. Make sure you’re casting a wide net on how you capture those.

But yeah, leave us with this. What’s the best way to contact you and your group? And tying off on what I just mentioned too, I’ll have to have you come on too when more of these topics pop up, but I assume that these are going to be the cases for a little while that you’re working. How can somebody get in touch with you if they’re running into these issues or have active cases and sooner rather than later, right, to your point earlier in the podcast.

Darlene Geller-Stoff: Absolutely. So please give me a call. Please contact me at dgellerstoff@compliancepoint.com. Would it be appropriate to leave my phone number here as well?

Jordan Eisner: You certainly can open yourself up to that as you want. It’s going on the web along with the translation.

Darlene Geller-Stoff: It’s fine. 678-640-2514. litigation support, we’re here to help. I also would love to have a chance to get back on when we’ve taken one of these further down the road, one of these R &D cases. Two of these cases are on the Rocket Docket, and I think they’re going to be moving along fairly quickly this year. So I’d love to revisit with you and discuss what has unfolded.

Jordan Eisner: That’s a great idea. Rocket Docket. I like that. All right, Darlene, and for our watchers and listeners. As you know full and well, CompliancePoint publishes a vast variety of topics and podcasts in the realm of information security, data privacy. You should know where to reach us, but in the event you don’t, compliancepoint.com, connect@CompliancePoint.com. There’s an email you can send to, and we can certainly direct you, Darlene and team, if you didn’t catch the phone number or the email address listed on this podcast. Until next time. Thank you, Darlene.