AMA with Affiliate Marketing Attorney

Paluzzi

New member
#1
⚖️ Need help with internet marketing law or have questions?
Trying to stay compliant?
👍 Well, we thought we could help.

Caller Meetup is holding an AMA (ask me anything) with an experienced attorney in all things internet marketing, affiliate marketing, and compliance.
📆 When? This Thursday. Head over to the group. https://www.facebook.com/groups/cal...f_id=1539119218833062&notif_t=page_group_post


This is your shot to ask anything about landing pages, FTC news, privacy issues, affiliate network accountability, etc..



DON'T MISS THIS!
 

Ringba

Administrator
Staff member
#2
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Anthony Paluzzi:

AMA HAS BEGUN
BEGIN TO COMMENT WITH YOUR QUESTIONS

Some rules on this session.
- Please do not reply to other comments. Wait until Richard has answered the initial question.
- Any hate will be deleted and you'll be booted from the group.
- Keep questions relevant to legal and compliance in our industry.

Now for the legal disclaimer...
Comments and responses are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No Person should act or rely on any comments or responses without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result.

If Richard cannot answer a question too in depth, please contact him at his page, FTC Defense Lawyer. He'll be happy to go deeper into any legal matter.

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Anthony Paluzzi:
How often would you recommend doing routine audits of affiliates to ensure they're staying compliant and to show that we're being responsible?

Richard B. Newman:
Regularly scheduled and randomly, general speaking. Documented, written policies remedial actions, etc. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Anthony Paluzzi:
What would you say are the biggest FTC hot buttons right now? What are their targets?

Richard B. Newman:
Privacy, data security, lead gen, IoT, Made in USA claims, substantiation claims (e.g. nurta), debt collection, consumer credit,telemarketing, work at home / biz opp, etc.

Debt relief as well.... to name a few.

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Anthony Paluzzi:
Is there something you're seeing most affiliates, networks or advertisers doing wrong in the space a lot?

Richard B. Newman:
Depends on the vertical and marketing channel. Generally speaking, however, failing to properly vet marketing partners. Everyone on the stream. Regulars want to see documented due diligence. Also privacy and data security are at the top of the list these days. Compliance with state and fed legislation (and, of course, GDPR). Consumers need to know / consent to how their information is being used.

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Joshua Matthew:
What do you recommend companies do to protect themselves from professional plaintiffs?

Richard B. Newman:
Wo limitation, compliance and militant/professional plaintiffs list. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

Understanding the TCPA - purposes, terminology, damages, what = an ATDS is critical. So are - wo limitation - knowing about litigation trends, being able to distinguish between informational and marketing calls, what "prior express consent" means and how to satisfy applicable standards, TCPA's healthcare message exemptions, the types of calls covered and the kinds of consent required for different message categories, how to identify best practices for mitigation TCPA litigation risk, etc. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

Joshua Matthew:
How do courts view individuals who make a living suing companies that haven't directly affected them personally?

Richard B. Newman:
I've heard some judges outwardly suggest that a prof plaintiff or two should get a hobby. The what constitutes actionable "damages" issue is an interesting one - being actively litigated nationwide.

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Adam Young:
How does the TCPA and other regulations affect inbound calls and automatically contacting someone for follow-up via SMS or email if they've only called an inbound number?

Richard B. Newman:
There are a number of different legal issues presented here. Please feel free to contact me directly to discuss. Interestingly and very generally speaking, many often overlook situations where an inbound call related sale is not completed, and then providers (or their agents) later place an outbound call. Numerous telemarketing compliance related concerns here (e.g., ATDS) and there should always be processes in place to collect consent. Sometimes there are consent issues lacking when a places an outbound call, even though generated by an inbound call. One reason important to consider recording calls so can that can rely on that evidence re disclosures / consent. Also, always important to know if a calling cell or residential. General speaking and without speaking to any specific factual scenario, smart to obtain independent consent to place outbound calls. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

Depends on vertical and manner of marketing (e.g., outbound v inbound). for instance, in the telemarketing context there are professional plaintiff directories available. of course, compliance. ensuring deliberately negotiated contracts, vetting, the implementation of DNC policies/procedures, TCPA compliance, vetting dialing technologies, training personnel, documenting training and remedial actions, maintenance of DNC lists and revocation requests, capturing consents, etc. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Gene Morris:
As marketers, we need privacy policies and disclaimers on our websites. I've always played fast and loose with these protections by ripping and tweaking policies and disclaimers found on more authoritative websites. Probably not the best approach.
What's needed on a website to be compliant, and protected these days? Are there any free resources available to get the job done like a richard newman approved privacy policy generator? Thanks for doing this btw.

Richard B. Newman:
Never a good idea to "borrower" others'. Privacy/data security is huge these days, esp in the lead gen space. in addition to gdpr, there are state laws popping up all over the place re ppolicies, written information security program requirements, etc. good info on disclosures via FTC Dot Com Disclosure Guidance. Privacy and data use related issues are amongst the most important issues re lead gen. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Anthony Paluzzi:
Are ringless voicemails considered an outbound dial?

Richard B. Newman:
http://pacedm.com/2018/07/federal-court-rules-ringless-voicemail-call-tcpa/

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Anthony Paluzzi:
Is there a fixed dollar amount per TCPA violation?

Richard B. Newman:
I believe that the statute permits "treble damages" for “willfully or knowingly” violations (which plaintiffs attorneys pretty much always allege). A treble damages award allows a plaintiff to receive statutory damages of $1,500 for each TCPA violation rather than $500. Off the top of my head.(informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Joshua Matthew:
Do you think there will be a spike in class actions given the newer TCPA regulations?

Richard B. Newman:
Reports are that TCPA filings have been decreasing the past couple of years, although I still see quite a bit of activity w lead gens, aggregators, service providers, call centers, etc. Uncertainty these days regarding a number of related issues, such as what qualifies as an ATDS and how the law will take shape following the recent DC Circuit decision (ACA Intl). Compliance is just as important as ever. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Danilo Lee:
Is there any rule to keep call recordings for X years? Would love to delete them and save money on cyber data insurance

Richard B. Newman:
Please feel free to contact me directly to discuss.

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Elesha Aflalo:
What are are guidelines for SMS? How do we best best protect ourselves using SMS?

And hello Richard Newman. Hope all is well.

Richard B. Newman:
Thank you EA, likewise. SMS are "calls." Subject to numerous laws, rules, regulations and best practices. TCPA, TSR, etc. Call/email any time. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Ali Azarvan:
Richard - thanks for taking the time here and providing such valuable feedback :) Just as a rule of thumb, what is your general take on Onshore vs. Offshore call centers? For example, do you have a hard "No offshore centers" rule?

Richard B. Newman:
Good question. Offshore are much more difficult to manage and tend to be cowboys/somewhat unaccountable when the ---- hits the fan - which it often does if they do not do things the right way. Happy to discuss any time..(informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Ljuben Krsteski:
According to new GDPR regulations for European Union(EU) and the European Economic Area(EEA) countries, should that be cleary shown on the website that is GDPR compliant or it may be inserted in privacy policy on the website?

Anthony Paluzzi:
FTC Defense Lawyer, like the page and Richard will reach out.

Richard B. Newman:
Unfortunately, I am not a GDPR expert. My privacy/data security practice focuses upon US laws/regulations. I do have some colleagues that can assist if you would like to discuss in further detail.

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Eric Evans:
People in the industry are often pitching their TCPA compliant data to sell. I get several emails a day along these lines "Hi, are you interested in purchasing our TCPA compliant data, it's converting well for call centers." What questions should a marketer ask to vet out a data source like this in order to legally call on that data to generate leads?

Richard B. Newman:
What their insurance policy limits are? Telemarketing lists are very dangerous. Issues include, lawful prior express written consent, DNC, revocation, suppression, etc. Call me any time and we can discuss this in further detail. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship)

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Tom Carolan:
In my experience, once a professional plaintiff finds a organization to target (meaning they receive a favorable settlement), they often try to find additional ways to target that organization. We had a situation last year where a call center publisher passed a call which was non-compliant, we accepted the liability and settled with the plaintiff. Of course at this time we canceled our contract with the publisher. A few weeks later we received another demand from the same plaintiff...apparently the publisher was still using the same list for prospecting. We explained that the publisher contract had been canceled and that we had not worked with them in months, but the burden was on us to prove that the contracted was canceled.

What protections are available in these kind of situations?

Richard B Newman:
Legal and operational compliance, due diligence, etc. (informational purposes only - not to be considered legal advice or the formation of a lawyer-client relationship).

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Tom Carolan:
We only use data which has either a Trusted Form certificate or a Jornaya Lead ID. Do these services offer significant protection against TCPA claims?

Richard B. Newman:
This issue is best addressed via telephone. Please feel free to give me a call any time.

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This AMA took place on the Caller Meetup Facebook Group with Richard Newman of FTC Defense Lawyer.
You can view the original AMA at:
https://www.facebook.com/groups/callermeetup/permalink/2253271014913799/
 
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