28 December 2012

Coca-Cola's Core Approach To Mobile Marketing Highlights Need For Vigilance In TCPA Compliance

Website MediaPost spoke to Kim Siler, mobile brand strategist, global connections at Coca-Cola, about the company’s broader mobile strategy. Of note were Ms. Siller's remarks about the importance that SMS ("short message service") text messages play in Coca-Cola's global mobile marketing efforts:
MP: Is SMS, because of its universality, still the core of Coca-Cola’s approach to mobile marketing?

Siler: It is one that our team pushes throughout Coca-Cola. It’s a ubiquitous format you can use to reach 98% of consumers and…it’s much more personal and much more integrated into what a consumer is already doing in their daily lives. So it is a very big part of the mobile marketing mix. We look at a wide range of platforms and outlets in mobile, so it’s not just SMS.
If SMS is important to a company like Coca-Cola, the guess is that it will be (and is) an important component to the mobile marketing strategies of many other companies as well - whether that company is a large corporation or SMB. 

As more companies utilize SMS, however, they should be mindful that the Telephone Consumer Protection Act ("TCPA") regulates the use of automatic dialing devices to make calls to mobile devices by sending SMS text messages to individuals. The penalties for TCPA non-compliance can be severe, and may include the risk of statutory damages, class action lawsuits, and regulatory fines.  We recently wrote about two TCPA class actions, where a federal judge in New Jersey denied company motions to deny class certification in the lawsuits.

As SMS text message campaigns increasingly become a core part of many company marketing strategies, any business using this type of consumer outreach will be well-advised to make sure its internal policies, procedures, and practices regarding are in line with the law.

26 December 2012

NJ federal court denies motions to deny class certifications in two TCPA cases

Goodrich Management Corp. v. Afgo Mechanical Svcs., Inc., Civ. No. 09-43, 11-2769 (WJM) (D.N.J. Dec. 14, 2012).

Judge Martini recently denied motions to deny class certifications in two cases brought under the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227. (The opinion can be accessed
here via Google Scholar.)

In Goodrich, the plaintiffs seek to represent classes of persons who allegedly received unsolicited faxes from defendants Afgo Mechanical Services (to plaintiff Goodrich Management Corp.) and defendants Banco Santander, S.A., Santander Holdrings USA, Inc., Santander Consumer USA, Inc., Sovereign Bancorp, Inc. and Sovereign Bank (to plaintiff Nicholas Fitzgerald).

Generally, the TCPA prohibits persons and entities from faxing "unsolicited advertisements," i.e., "material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." 47 U.S.C. § 227(a)(4), (C).

24 December 2012

A Primer on Business Associate Agreements for the Sharing of Protected Health Information

This article broadly discusses business associate agreements, the required provisions under HIPAA/ HITECH, and other provisions that should be contemplated by health care covered entities or business associates as they enter into or revise "business associate agreements." This article focuses solely on Protected Health Information and health data contracts. The principles explored in this article, however, can be applied generally to other types of third-party contracts that deal with other types of data and privacy. There are, of course, specific considerations depending on the particular privacy or security statute at issue. This article was originally published in the December 2012 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.