Outsourcing Law & Business Journal™ – February 2012

February 6, 2012 by · Leave a Comment 

OUTSOURCING LAW & BUSINESS JOURNAL™ : Strategies and rules for adding value and improving legal and regulation compliance through business process management techniques in strategic alliances, joint ventures, shared services and cost-effective, durable and flexible sourcing of services. www.outsourcing-law.com. Visit our blog at http://blog.outsourcing-law.com.

Insights by Bierce & Kenerson, P.C. Editorwww.biercekenerson.com.

Vol. 12,  No. 2, February 2012
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Last chance to sign up for another Webinar in our series on:
The Future of Law and the Impact of Outsourcing, Part 2
(Part I was presented October 26, 2011)

Date: Thursday, February 9, 2012
Time: 11:00 AM EST – 12:20 PM EST

Join our experts in the “business of the law” for Part Two of our webinar series concerning The Future of Law.  Listen in as we discuss the disruptive and creative impacts of business process outsourcing (BPO), legal process management (LPM) and legal process outsourcing (LPO) on the traditional delivery and management of legal services and legal support services.

Speakers:

William B. Bierce, President of Bierce & Kenerson, P. C. (full disclosure, also the publisher of this website)
David T. Kinnear, COO of Cerebra LPO; Partner and Co-Founder of GSSOCX
Jason Mark Anderman, President and Co-Founder of WhichDraft

Cost: Free!

Click here for more information and registration.

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1.  Robo-Calls, Call Centers and Collection Agencies:  Supreme Court Approves Federal Court Lawsuits under Telephone Consumer Protection Act of 1991.

2.  Humor.

3.  Conferences.

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1.   Robo-Calls, Call Centers and Collection Agencies:  Supreme Court Approves Federal Court Lawsuits under Telephone Consumer Protection Act of 1991. On January 18, 2012, the U.S. Supreme Court ruled on a case of an outbound telephone call center that contacted one individual using robo-dialers and voice recordings.  The decision reminds companies using call centers for outbound contacts that a Do-Not-Call list should be respected or federal litigation could result, and that federal procedural rules could result in high litigation costs and settlement value.  For the complete article, click here.

2.   Humor.

Call Center, n. A recording studio for “training and quality control purposes.”

3.  Conferences.

February 28, 2012, Legal Process Outsourcing, HSBC Center, New York, New York. This roundtable will provide an in-depth overview of how to capitalize on LPO strategies and techniques. We have developed this program specifically to help corporate counsel carefully examine the benefits and challenges of outsourcing certain components of their internal clients’ legal work. Specific takeaways from this roundtable will be: developing workable solutions to cut costs, improving quality and timeliness of deliverables and best practices to manage ethical concerns. As an attendee, you also earn up to 4 CLE Credits. For a copy of the program agenda, click here.

March 7-9, 2012, 16th Annual North American Shared Services & Outsourcing Week, Orlando, Florida. In 2011 we brought you the ‘revolution’ of shared services – 2012 is all about delivering The Next Level of Value by Accelerating Global Growth & Delivering Business Insights to the Board. Over 100 thought leaders and companies including AOL, Volvo, Deloitte, DHL, Monster.com, Salsesforce.com, Hyatt, Molson Coors, Philips, BAE Systems, Intel, Perason, BP, P&G, UBS, Citigroup, WPP Group, Yahoo!, DHL and HP will present their inspiring talks and roundtables to drive global growth and root shared services firmly into the boardroom agenda. If you want to challenge your captive and outsourced operations to influence business outcomes, or endorse the IMPACT shared services can have on the success and progress of a business as a whole, then this event is a must attend for you. To register, visit their website.

March 15, 2012, Global Services Conference 2012, New York, New York. Global Services Conference 2012 will focus on how to build and sustain excellence in services.
This strategy is the key to enterprise services, enterprise transformation, and aligning that transformation to drive competitive advantage to companies. Companies are looking to access data and knowledge in a better way and to leverage the maturity of the services organization that has been in place to drive better business value. For more information, visit their website.

April 23 – 25, 2012, IBC presents The Legal, Regulatory & Compliance Outsourcing Conference, Grange Tower Bridge Hotel, London, United Kingdom. Hear from 20+ international experts on The Smarter Legal Model; trends in regulation, accreditation and certification, the business case for outsourcing; service delivery models; vendor selection; ethics and compliance; case studies; LSO contracts; data protection and security; technology enablers; managing the relationship; business optimisation and the future of outsourcing in law firms. 20% discount for Outsourcing-Law, use VIP code FKW82266OTLEM

April 23 – 25, 2012, 6th Corporate Counsel Exchange, Radisson Edwardian Heathrow Hotel, London, United Kingdom. The award winning Corporate Counsel Exchange is back in London!  Our 6th Corporate Counsel Exchange, in London, United Kingdom, will be co – located with the 3rd Corporate Compliance Exchange. View co – located agenda.  In April over 150 General Counsel and Chief Compliance Officers will gather to share strategic insights, discuss the latest developments in the legal and compliance sphere and meet with a range of leading law firms and solution providers offering innovative tools and services to help you increase the efficiencies of your department.  For more information visit www.corporatecounselexchange.co.uk, call: +442079689745 or alternatively email: exchangeinfo@iqpc.com.

April 23 – 25, 2012, Corporate Compliance Exchange,Radisson Edwardian Heathrow Hotel, London, United Kingdom. Corporate Compliance Exchange will once again unite Chief Compliance Officers in senior level networking forum in London, United Kingdom.  The 3rd Corporate Compliance Exchange is co – located with our 6th Corporate Counsel Exchange. Through a series of streamed sessions, joint networking panel discussions and roundtables, the award winning Exchange format offers Chief Compliance Officers and General Counsel a unique opportunity to keep current on the most pressing compliance issues and find out what strategies your peers have put in place to safeguard their organisations against compliance risks.For more information visit www.complianceexchange.co.uk, call: +442079689745 or alternatively email: exchangeinfo@iqpc.com.

May 14, 2012, 4th eDiscovery Oil & Gas Conference,  Houston, Texas. Mark your calendar for the 4th eDiscovery Oil & Gas Conference.  Building off of the success of our 2011 event, eDiscovery Oil & Gas will return to Houston on May 14-16 for you to improve your organization’s eDiscovery capabilities and comply with the requirements of the FRCP.  Learn from industry leading experts about effective e-Discovery strategies that they employ.  This conference will leverage best practices to show how to conduct thorough, cost-effective and defensible e-Discovery. For a copy of the program agenda click here.

May 16 – 18, 2012, SSON presents the 12th Annual Shared Services Finance & Accounting, Dallas, Texas. This event covers the entire spectrum of Finance & Accounting challenges in Shared Services from Process Design, Governance, Benchmarks, Metrics, and Audits through to Training and Change Management.  Each speaker will be diving straight into the specifics of their case studies offering timelines, metrics, results and lessons learned for you to take back to your own office.  For more information, visit their website.

May 21 – 23, 2012, SSON’s 11th HR Shared Services & Outsourcing  Summit, Chicago, Illinois. Creating the foundation for strategic human capital management through HR shared services, this event will will cover HR Shared Services challenges in Process Design, IT integration, Standardization, Benchmarks, Metrics, and Harmonization through to Training and Change Management.  Topics include Globalization, Inhouse-vs. Outsourcing, Growth Opportunities and more.   To register, visit their website.

June 24 – 26, 2012, SSON 6th Annual Shared Services Exchange, Pinehurst, North Carolina. For the 6th year in a row, the Shared Services Exchange will be the elite event for shared services executives who are looking to develop new strategy, solve challenges and source partners that will allow them to create efficiency and drive more value out of their shared services centers.  Efficiency is still on the minds of these executives as they search for solutions to create consistency across multiple business functions and develop hybrid strategies that utilize outsourcing and captive centers—all while sustaining centers as a core business strategy.  This event will continue IQPC Exchange’s ongoing tradition of offering cutting-edge, strategic networking and learning opportunities for senior level shared services executives.  For more information, click here.

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FEEDBACK: This newsletter addresses legal issues in sourcing IT, HR, finance and accounting, procurement, logistics, manufacturing, customer relationship management including outsourcing, shared services, BOT and strategic acquisitions for sourcing. Send us your suggestions for article topics, or report a broken link at wbierce@biercekenerson.com. The information provided herein does not necessarily constitute the opinion of Bierce & Kenerson, P.C. or any author or its clients. This newsletter is not legal advice and does not create an attorney-client relationship. Reproductions must include our copyright notice. For reprint permission, please contact: wbierce@biercekenerson.com. Edited by Bierce & Kenerson, P.C. Copyright (c) 2012, Outsourcing Law Global, LLC. All rights reserved. Editor-in-Chief: William Bierce of Bierce & Kenerson, P.C., located at 420 Lexington Avenue, Suite 2920, New York, NY 10170, 212-840-0080

Robo-Calls, Call Centers and Collection Agencies: Supreme Court Approves Federal Court Lawsuits under Telephone Consumer Protection Act of 1991

February 6, 2012 by · Leave a Comment 

On January 18, 2012, the U.S. Supreme Court ruled on a case of an outbound telephone call center that contacted one individual using robo-dialers and voice recordings.  The decision reminds companies using call centers for outbound contacts that a Do-Not-Call list should be respected or federal litigation could result, and that federal procedural rules could result in high litigation costs and settlement value.

In Mims v. Arrow Financial Services LLC, ___ U.S. ____ (2012), the Court reviewed actions by a debt collection service that repeatedly used an automatic telephone dialing service using a pre-recorded voice message to call a debtor’s cell phone without the debtor’s consent.  The Court ruled that the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227 (the “TCPA”), establishes a “federal question” justiciable by federal courts even though the statutory minimum damages per violation are only $500 and the cost of filing a federal complaint is $350.   For knowing and willful violations, the damages are tripled.

The federal statute makes it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express consent of the called party, to call (i) any emergency telephone line, hospital patient, pager, cellular telephone or other service for which the receiver is charged with the call or (ii) any  residential telephone lines.  The TCPA also prohibits sending unsolicited advertisements to fax machines.  Finally, it bans the use of automatic telephone dialing systems to engage two or more business telephone lines simultaneously.

This law delegates authority to the Federal Communications Commission to ban artificial and prerecorded voice calls to businesses and directs the FCC to adopt regulations protecting the privacy of residential subscribers, possibly through a national “do-not-call” list.

The collection agency argued that the law did create a private right of action to sue in federal courts, and that state courts were the exclusive forum for collecting the statutory damages from a business that breaches the TCPA or the FCC regulations.   The Court rules that the Congress granted a cause of action and did not exclude filings in federal courts to enjoin breaches and obtain damages.  Several arguments failed to persuade the Court that state courts are the exclusive venue: (i) state courts give a sufficient venue by entertaining class actions against robo-calls; (ii) the Senator who sponsored the law did not mention the federal courts as a venue for enforcement; and (iii) the federal courts would be flooded with small $500 and $1500 claims, so that Congress could not have possibly wanted to impose such a burden on the federal courts.  Rather, the Court ruled that when Congress grants a private right of action and defines the rules governing liability, a federal question arises, and federal courts have jurisdiction under 28 USC 1331.

Some key differences make the federal courts a desirable venue for plaintiffs seeking relief for small claims:

  • Rule 23 of the Federal Rules of Civil Procedure (FRCivP) promotes the use of class actions to remedy cases involving a large number of claimants seeking damages for the same pattern of action by a defendant or group of defendants.
  • Rule 11 of such rules impose sanctions on lawyers who do not properly gather information to support their legal arguments, and thus limit the types of defenses that a wrongdoer can use to delay, drag or “wait.”
  • Federal Rules on E-discovery have led to “best practices” that can cost money for the defendant, from adopting and implementing detailed “records retention” policies involving “litigation holds” to training of personnel in records retention, the practice of taking a snapshot of the hard-drive of a departing employee to avoid a later claim of “spoliation of evidence.”  See FRCivP Rules 16(B) and 26(F) [Meet & Confer], Rule 26(B)(2) [Duty of Disclosure], Rule 26(B)(5) [Privilege Claims], Rule 34 [Forms of Production] and Rule 37 [Safe Harbor].

This ruling will result in increased use of class actions in federal court to extract settlements from companies violating the “Do-Not-Call” rule, the general prohibitions under the TCPA and other new regulations that the FCC may choose to adopt.  What does this next sentence mean?  The decision does not prevent businesses from using automatic dialers from making calls, but it does prohibit the use of robo-callers with prerecorded voice messages.  The clarification about robo-callers also affects other elements of the TCPA.

For call centers that provide collection services and other outbound calling services, the Mims decision serves as a “wake-up call” that federal court class actions can be anticipated for violations.  Businesses that hire such call center outsourcers will normally expect the service provider to indemnify them from liability under such federal litigation.  The rules are very clear…at least that any unclear aspect can now be resolved as a “federal question” in a federal court.