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posted 8 years ago
Due to rapidly developing
technologies and constantly evolving marketing practices, businesses working in
the telemarketing space are frequently the subject of Attorney General
inquiries and lawsuits. This is true for both businesses providing telemarketing
services and those utilizing third-party marketers to sell their respective products
or services.
Many operators in this
space have likely heard horror stories from peers and competitors (or worse
yet, their principals) that were subjected to heavy fines, injunctions and/or
penalties for deceptive marketing practices. Needless to say, the first
steps taken after hearing from an Attorney General are critical.
How does the Attorney
General contact telemarketers?
Telemarketers may first
hear from the Attorney General by phone, letter or by service of a Civil
Investigative Demand (“CID”) inquiring about their business practices or those
of a third party. In other cases, a business may not hear from the
Attorney General at all until after a lawsuit is filed. Regardless of the
initial communication, how – and through whom – a telemarketer makes its
initial response to the Attorney General is critical.
How should telemarketers
respond to the Attorney General?
First,
the simple answer: A telemarketer should not respond to the Attorney
General – its attorneys should. Experienced attorneys will know what to
say, what to ask and, perhaps most importantly, when to say nothing. Counsel will determine what is at the core of
the investigation and who the real targets are, which will help limit the
investigation and point it in the proper direction. Experienced counsel
may help prevent an investigation from turning into a lawsuit. If a
lawsuit has been commenced, the goal is to get the quickest, most cost-effective
and painless resolution. If the resolution involves a written settlement,
it is critical that the injunctive provisions therein be narrowly crafted, not
only to allow for lawful business to continue, but also to contemplate
potential future changes in business practices and technologies.
Second,
telemarketers should resist the temptation to create or destroy
documents. In this digital age, document tampering or spoliation
will generally be uncovered during the discovery portion of the action.
Not only will this dramatically increase the Attorney General’s interest in the
underlying case, but such activities may create an entirely distinct and
additional basis for the Attorney General to pursue the business, as well as
the individuals involved.
Third,
businesses should not discuss the matter with anyone, including their staff, before
speaking with an attorney. Also, no matter how sure telemarketers are of
the propriety of their business practices, they should not speak directly to
the Attorney General. This firm has seen countless examples of companies
– and inexperienced counsel – trying to “set the Attorney General straight” and
quickly turning a manageable situation into a disaster. Telemarketers and
sellers should not issue press releases, which may only bring more unwanted
attention – and perhaps the attention of more Attorneys General – to the
situation. Moreover, the CID or other document received may have a
confidentiality notice attached, which should not be violated.
Isn’t an Attorney General
action just like any other civil litigation?
Far from it. An Attorney General often has a different
motivation than a traditional plaintiff. For example:
·
Unlike a civil litigant looking simply for
monetary damages, an Attorney General may select a case in order to send a
message to an entire industry, particularly since Attorney General actions tend
to be higher profile than typical litigation.
·
The economic incentives for an Attorney
General to pursue and continue a case are often different because the Attorney
General has the resources of the State behind it and often applies a different
cost/benefit analysis, particularly if the goal is to provide guidance to an
industry.
·
Attorneys General have home field
advantage and, in certain circumstances, have a lower standard of proof than a
typical civil litigant.
·
Attorneys General often have many remedies
available to them, including statutory fines, penalties, disgorgement and
certain injunctive relief not available to typical plaintiffs.
·
Attorney’s fees are seldom granted in
civil litigation, but payment of the Attorney General’s civil investigative
costs is often part of the discussion in most Attorney General matters.
Unfortunately, there are
countless examples of attorneys who, through hubris, erroneous tactics or
simple lack of understanding of these differences, turn quickly winnable cases
into quagmires.
How can telemarketers come
out on top?
The best way to succeed
in an Attorney General investigation or action is to never appear on the
Attorney General’s radar screen in the first place. For businesses engaging
in telemarketing, or utilizing any form of third-party marketing, it is
critical to retain counsel that is knowledgeable and experienced in telemarketing
practices long before the Attorney General comes knocking. Counsel should
know the ins and outs of telemarketing law, as well as the red flags Attorneys
General look for. This could save businesses and their principals substantial
time and money.
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