The medical alert monitoring industry has had a great deal of difficulty over the past few years because of companies engaging in “robo” calling — utilizing improper names, misrepresentation and other illegal and illicit activities. It is frequently difficult to track the callers because calls are made from remote locations and are consistently changing. In order to try to stop these types of calls, the United States District Court for the Middle District of Florida came out with a ruling granting a permanent injunction against one of the violators.
In addition, the Federal Trade Commission (FTC) of the State of Florida, the office of the attorney general and the department of legal affairs filed an action against a number of individuals and companies engaging in these activities. The parties were all properly served, but did not file answers to the complaints filed by the FTC and the attorney general. The FTC and the State of Florida filed a motion for entry of judgment and order for permanent injunction and monetary relief against the defendant, Live Agent Response LLC. The U.S. magistrate judge submitted a report which recommended that the motion for default judgment be granted and that the U.S. district court enter an order that includes findings of fact and injunctive and monetary relief.
The court in its findings, among other things, cited sections of the Federal Trade Commission Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the FTC’s Telemarketing Sales Rule and the Florida Deceptive and Unfair Trade Practices Act. The court found that defendant, in numerous instances, misrepresented itself and its product, including stating that the defendant’s medical alert system was endorsed by various associations. The court, in addition to the injunction, awarded monetary relief of close to $7 million.
The court went on to define “telemarketing” as any plan, program or campaign, which is conducted to induce the purchase of goods or services by use of one or more telephones, and which involves a telephone call, whether or not covered by the Telemarketing Sales Rule. The court also said the defendant was permanently restrained and enjoined from initiating or causing others to initiate any telephone call that delivers a prerecorded message. The court also stated that the defendant was permanently restrained and enjoined from participating in telemarketing, either directly or through an intermediary; that the defendant was permanently restrained and enjoined from advertising, marketing, promoting or offering for sale or assisting in the advertising, marketing, promoting, or offering for sale, of any medical alert product or service; and the defendant and its officers, agents, servants, employees and attorneys and all other persons in active concert or participation with any of them, who received actual notice of the order, whether asking directly or indirectly in connection with the advertising, marketing, promoting, or offering for sale of any goods or service, were permanently restrained and enjoined from misrepresenting or assisting others in misrepresenting, expressly or by implication.
The judge also ordered the defendant to submit compliance reports or other requested information to the courts. The assets of the defendant were frozen and the court further ordered that the freeze on the assets would remain in effect until monetary relief was paid.
As indicated, it is often difficult to locate these telemarketers, but this appears to be a start and a warning to those who continue the process.
