What's the quickest way to get yourself sued, for the most amount of money, advertising-wise? It's as simple as picking up the phone (or fax).
Unsolicited calls, texts, and faxes, which are often made in bulk, can lead to statutory damages of between $500 and $1,500 per violation. We've seen plenty of appellate cases dealing with the nuances of the law and regulations. And as you might expect, appellate courts have little sympathy for telemarketers and junk faxers.
We're not even going to talk about ethics rules here, not just because they vary so much by state, but because it's hard to imagine an unsolicited text/call/fax campaign that wouldn't violate solicitation rules. (If you're looking for the next big thing in law firm marketing, either put the phone and fax down, or talk to someone who really knows what they're doing.)
1. Junk Faxes
Don't think anyone faxes anymore? Ask the idiot who keeps sending advertisements to our office for mobile app development. (Die in a fire, dude. Die in a fire.) We see a surprising number of fax spam cases around here, including one where an auto-repair business hired someone to send out legitimate faxes, but the marketer botched the deal, leading to a settlement of nearly $2 million for 5,000 junk faxes. Fortunately for the auto-repair business, its insurance company was forced by the appellate court to cover it, but still -- that's a heck of a penalty that otherwise would've fallen on the original company's ledger.
2. and 3. Unsolicited Telephone Calls and Text Messages
So, your plan to hire someone to robo-call people? OK, that's probably not going to happen, thanks to ethics considerations. But if you think of an ethical telemarketing scheme that somehow doesn't trigger solicitation bans, think a bit harder, because the Telephone Consumer Protection Act (TCPA) does exactly what it was intended to do -- end unsolicited telemarketing crap.
We blogged about a case where a company had an old phone number, and the Seventh Circuit held that it was no defense because it didn't have consent from the successive owner who nabbed the same number years later. And guess what? It's $500 per call (or text, or fax) in statutory damages.
The Bottom Line
For unsolicited texts, calls, and faxes, the TCPA will ruin your life. And late last year, the FCC made the TCPA's rules even stronger, requiring an automated opt-out message at the beginning of a call, express written consent for certain types of calls, and most importantly, the end of the "established business relationship" defense. There is almost no way to get away with these types of campaigns anymore.
Looking for some good law firm marketing ideas that won't get you sued? Get some expert advice by contacting your local FindLaw consultant today.
Editor's Note, November 4, 2015: This post was first published in October 2014. It has since been updated.