By Steve Moran
On May 23, 2016, the law firm Clifford A Cantor, P.C. filed a class action suit on behalf of Robert Erickson “and on behalf of all others similarly situated” against A Place For Mom (APFM) for repeated and multiple violations of the laws that regulate telemarketing (you can read the entire complaint at the bottom of the article).
This is a topic we recently wrote about HERE. The bare bones of the lawsuit look something like this (from a non-lawyer perspective):
APFM has conducted and continues to conduct “wide-scale” telemarketing campaigns in violation of the Telephone Consumer Protection Act (TCPA).
Specifically it alleges that APFM is supposed to have permission to call individuals who are listed on the “National Do Not Call Registry” and that they are calling individuals who are on that list and do not have that specific permission.
Additionally, they are charged with, in effect, of ignoring requests directly to APFM staff to be added to the APFM no call list.
They are asking for an injunction against APFM to immediately stop making those calls as well as monetary relief that, by statute, is equal to at least $500 per dial (not answered calls). An amount that would likely be in the hundreds of millions or even billions of dollars.
They specifically quote some complaints from the websites 800notes.com and WhoCallsMe.com. Here are a couple of samples:
“Two calls so far today, which I did not answer. Also did not request info about retirement homes. Am in do not call list but it doesn’t seem to make any difference.”
“They must cal [sic] 3-4 times a day and do not leave a message. My parents have been dead for almost 10 years, my wife’s parents even longer. No clue why they think I or my wife need senior care.”
Frivolous or Real?
This is real. It is a clear violation of TCPA. Now that there’s blood in the senior living industry water, many more suits are likely to follow. A class action lawsuit is a big deal, this is not some solo attorney trying to settle quickly.
I have reached out to APFM and have not heard anything back at this point, which makes some sense. I did talk to one industry expert who mostly felt that it was a largely frivolous attempt by an enterprising attorney who hopes to extract some cash from APFM.
Here is the crux of the problem: When a consumer fills out a “request for more information form” on the APFM site, there is no disclosure that the consumer will receive a phone call and there is no permission granted by the consumer to receive phone calls from APFM. After the form is submitted there is a notification that the consumer will be called, but by then there is no way for the consumer to say “No I don’t want a call”.
Everyone is at Risk
It might be easy to see this as an APFM problem and there may even be some glee since there is this on-going love-hate relationship between lead aggregation companies and senior living providers, but this is a serious wake-up call for every senior living company that has an inquiry form on their website because . . .
YOU COULD BE NEXT!
Here is the bottom line, if you do not have specific language that gives permission to call, you could see similar a similar lawsuit dropping on your doorstep.
I tested about half a dozen inquiry forms on various senior living sites and none have the permission language that the law seems to require. I am not a lawyer and this should not be construed as legal advice, but I am thinking a conversation with your legal folks about this issue would be a better-safe-than-sorry thing to do.
Thinking About It
Unscrupulous telemarketing organizations (and some greedy lawyers) have brought us these laws. Too often, good legitimate businesses who are following best practices can get entangled in these broadnet laws. It may be unfair and unreasonable, but we have no choice but to work within the legal constraints.