Not If, But When: Cover Your Act in TCPA Liability

Not If, But When: Cover Your Act in TCPA Liability

Jack Bowen Chief Marketing Officer

AcademixDirect [email protected]

Today’s Speakers

Rachel Hirsch Senior Attorney

Ifrah Law [email protected]

Derek Smyth Director, Business Development

LeadiD [email protected]

Confidential and Proprietary#TCPA2014

mailto:[email protected]



• Introduction • Proof Positive • Not If, But When • TCPA Insurance? • Questions

Agenda


Proof Positive


Jack Bowen Chief Marketing Officer AcademixDirect


Confidential and Proprietary

Proof Positive: Regulatory TCPA Compliance

#TCPA2014

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AcademixDirect Compliance Challenge

AxD requirement to hit the mark on regulatory compliance is critical - and hard enough just even shifting regulations.

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AcademixDirect Compliance Challenge

#TCPA2014

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Our Solution

Turning to a third party has great benefits.


How did we get here?

100+ Million “Demand”

2.5 Million Applications

1 Million Starts

Natural supply of post secondary education prospects is well below ongoing demand for

inquiries.

System willing to accept low conversion rates as long as CPI was low enough to deliver positive

expected LTV.

Meat ’n’ Rice

Confidential and Proprietary#TCPA2014 Confidential and Proprietary#TCPA2014

Definition: The profitable equilibrium of converting and non-converting inquiries

Gaming Lead providers add low

cost leads at high margin when the period is running at higher than

expected conversion.Inefficiency

Non-converting leads cause inefficiency by requiring excess, non-productive admission

resources.

Liability Government regulators

see the industry creating education leads

from job listings – and hard sale converting.

Meat & Rice Issues?


Now you are in a position to tell your General Counsel

that you are compliant!

Implementation Complete!

Addressing TCPA Liability

TCPA

• Determine process changes required

Requirements

• Revise lead forms • Notify publishers

Mitigate

• Fix identified anomalies

• Record actions


• Your process was signed off by external counsel

• Your internal audit team has certified that youare actually following process (they add thatit’s a first for marketing)

• You implement a tracking and samplingsolution and can prove effective senseand respond

• Your General Counsel calls you to theoffice to share a document

Prove it!


Schools need a solution for “repeated or persistent acts of litigation”for the purposes of profit or harassment

Important note: Consumers who feel as though a marketer has violated their rights with respect to TCPA should address the transgression – and if necessary seek representation

To prove unequivocally that the controlling request for engagement and the intervening interactions align with the statute


Commitment to Comply

• Recognized as Best-In-Class within the industry

• AcademixDirect firmly committed to consumer transparency – the hallmark of any compliance implementation

• Proud to partner with LeadiD on behalf of our students and customers


Not If.But When.



Rachel Hirsch Senior Attorney Ifrah Law


Why is Litigation Inevitable?

• Insufficiency of private contracts • Rise in plaintiff cottage industry • Focus on volume • Desirability of statutory damages • Availability of plaintiff-friendly forums • Limitations of defenses - i.e. “Strict Liability”

Confidential and ProprietaryConfidential and Proprietary#TCPA2014

Why is litigation so scary?

Big Settlements!

Lack of Predictability!


What should your company do if faced with TCPA Litigation?

• Maintain company records

• Review insurance coverage

• Evaluate legal and factual defenses

• Avoid class certification


Maintaining Corporate Records

• Transmission Records • Opt-ins • Consent Forms

The proof is in the pudding!


• Insurance proceeds alone may be insufficient to settle case

Review Insurance Coverage

• Availability of insurance may depend on state interpretation of TCPA as Remedial v. Punitive

• Insurer’s refusal to provide defense coverage may give rise to suit

First Line of Defense• Improper Service? • Jurisdictional Challenges? • Affirmative Defenses?

Knock the case out before it even begins!

Evaluate legal v. factual defenses



Vicarious Liability• Finding vicarious liability for authorized

third-party dealers • Protecting third party independent

contractors • Seeking indemnification from third parties

Evaluate legal v. factual defenses


Avoid class certification

Commonality/ Predominance

Adequacy of class representative

Ascertainability


What open questions remain?

What is an “Autodialer”?

What is prior express written consent?

? ?


It’s likeTCPAInsurance.


Derek Smyth Director, Business Development LeadiD


Intellectuals solve problems.Geniuses prevent them.

Albert Einstein(1879 - 1955)


• Did they have the ability to opt out?

• Do your lead forms include a disclosure? • Is it “clear and conspicuous”?

• Did the consumer provide consent to be contacted using an auto-dialer?

The Big 4 Questions to Ask


Protect yourself: Have definitive proof of

compliance

Be proactive: Develop a corporate

standard for compliance

Move with scale: Automate decisions to accept, reroute,

etc.


• It’s not enough to be compliant

• The burden of proof is on you

• Can you prove compliance?

Proving Ground


video

#TCPA2014

• Evolve from “present” disclosure to “clear and conspicuous” (per your standards)

• With the consumer, at the original lead event

• Every page of the lead form, not just first

• Real-time monitoring maintains speed-to-contact without compromising actionability

• Have definitive proof

Intelligence at every level


Our standard of proof is higher.

• Seeing TCPA compliance for yourself

• Not tied to the form; it’s tied to the consumer• Not just someone who sold the lead telling you

it’s compliant

Proof is


TCPA & Visual Playback Questions?

[email protected]



Questions?


Thank You!
