November 2019 Issue

High Achievers Create Powerful Habits.

“Ultimately, people do not decide their future, they decide their habits and their habits decide their future.” — John Maxwell

Habit creation is the hot topic these days. We are constantly running habits whether they are conscious or not. In fact, Duke University states that habits account for about 40% of our behaviors on any given day. 

Aristotle nailed it when he said “We are what we repeatedly do. Excellence, then, is not an act, but a habit”. Habits are what you repeatedly do; I’m not talking about what you’re thinking about doing, rather what you actually do! Habits form the person that you are, from diet and exercise to personality and beliefs.

There are many great books covering habits and their impacts on our lives, so I won’t dig too deep here. The goal of any habit that supports you is to reach a stage of automaticity. How long does that take? Well there has been much debate over the time it takes to form a new habit, recent research from the University College of London has helped shine a light on how long it will actually take to reach the level of automaticity.

The study examined the habits of 96 people over a 12-week period. Each person chose one new habit for the period and reported each day on whether they performed the behavior and how automatic it felt.

Some people chose simple habits like “drinking a bottle of water with lunch”, while others chose more challenging tasks like “running for 15 minutes before dinner.” At the conclusion of the 12 weeks, the data determined that it took on average more than 2 months to create a new behavior – 66 days to be exact. Of course, this can vary by person and their individual circumstances. But the old idea that it takes 21 days to form a new habit was shattered.

Marc Beauchamp

One call and you can lose it all.

Unlimited calling plans, automated Phone systems, texting and ringless voicemails have become ubiquitous in our modern tech age. Companies are trying harder and harder to reach potential customers. Ironically, as the number of ways to communicate keeps expanding, it is getting more difficult to contact prospects. The number of calls escalates. With this escalation have come lurking dangers.

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to curtail unsolicited telemarketing calls. For years, the legislation was effective. However, no one saw the proliferation of the cell phone. As everyone attached a phone to their hips and ears, the TCPA became as obsolete as the pager. Obsolete electronic devices fade away and become objects of curiosity. Obsolete legislation becomes a nuisance and an emotional and financial terror in the hands of voracious trial attorneys. Until 2015, there were about three thousand TCPA cases filed annually, and the cases were all business to consumer calls. The FCC made some regulatory changes to allow for B2B calls to be included. The TCPA complaints skyrocketed to nearly five thousand cases in 2016.

Although TCPA cases have declined in the last two years, demand letters and settlement amounts have exploded. The most famous TCPA case was Dish Network. Dish Network hired third party call centers to drive sales. The lead plaintiff, Dr. Thomas Krakauer, filed a class action against Dish Networks for TCPA violations. Dish Network argued that the company did not violate the TCPA- its “no agency” affiliates did. That argument did not fly, and the jury found for the plaintiff. The settlement was a whopping two hundred seventy million dollars. (The settlement amount has been reduced to sixty-one million dollars as of June 2019. Dish Network still holds the record for largest TCPA settlement amount, although Capital One may beat that record with a pending seventy-five million dollar settlement.)

The TCPA has become so lucrative that how-to sites have popped up, like These sites sell step by step guides on how to write demand letters, file TCPA complaints, and collect judgments. Now every Tom, Dick and Harry can learn to sue. Since legal fees are not awarded in TCPA lawsuits, what is the downside? TCPA is strict liability, i.e. the burden of proof lies with the company which made the alleged call(s), to prove its innocence.

Companies like Dish Network and Capital One have boatloads of attorneys and even more cash on hand for settlements, small businesses do not. Small businesses are at the mercy of these legal extortionists. Even if the small business is fully TCPA complaint, the legal costs to prove compliance can be high. The average legal cost to litigate a TCPA case can run in the tens of thousands of dollars. Due to the exorbitant cost of our legal system, most small businesses decide to settle.

As the number of TCPA cases has declined, the settlement amounts have risen from a few thousand dollars to tens of thousands of dollars. The TCPA plaintiffs are using the threat of class action as leverage to gain higher settlements. Currently, it is not unheard for a small business to be sued for five million dollars for a few phone calls and having to settle for twenty or thirty thousand dollars.

In the worst-case scenario, several businesses have been shut down due to TCPA lawsuits. The most recent and most disturbing TCPA case involved Janet Oh’s Allstate Insurance Brokerage. Janet Oh is a South Korean immigrant who built a successful insurance brokerage in Orange County. In 2018, Janet Oh’s brokerage received a lead, Abante Rooter and Plumbing, owned by Fred Heidarpour of Emeryville, California, from an approved Allstate vendor. Janet Oh’s agency scrubbed the lead through Allstate’s phone scrubbing service. Having received clearance, Janet Oh’s brokerage called Abante two times. A few weeks later, Abante filed a TCPA Class Action Lawsuit against Janet Oh’s brokerage. Janet Oh turned the case over to Allstate corporate. Allstate’s high-powered corporate attorneys reached a settlement with Abante in April 2019, for ten and a half million dollars.

The settlement was just the beginning of Janet Oh’s TCPA nightmare. Those two phone calls prompted Allstate to deliver a cruel and fatal blow to a loyal brokerage. In July 2019, Allstate severed its ties with Janet Oh’s brokerage and gave her three months to sell her book of business.
Janet Oh is not alone in being fatally wounded by the TCPA. There are many small businesses that have called it quits over the TCPA. The legislation is so one-sided and allows for companies like Abante and multiple case litigators to abuse it.

The TCPA is being abused. TCPA lawsuits and demand letters have proliferated in recent years to the extent that most small businesses are aware of the dangers; yet remain uncertain about what to do to protect themselves. Many small business owners are hoping that the TCPA will go away or at least be reformed so that it is no longer a threat. The TCPA has been around for 28 years and is not going away. It is not likely to be reformed any time soon, either. The best course of action for any business, large and small, concerned about TCPA violations, would be to be as TCPA compliant as possible, maintain a Do Not Call policy, and finally, subscribe to a good TCPA scrubbing service, such as this one.

A good TCPA scrubbing service can significantly mitigate your company’s risk and exposure. The TCPA scrubbing services are comparatively inexpensive to the cost of a TCPA lawsuit or dealing with TCPA demand letters. More importantly, by scrubbing your lists, you help reduce the abuses by the serial TCPA litigators who prey on inattention to detail and ignorance.

Businesses can not eliminate phone calls or even texting. These activities are essential to a productive and efficient business in the 21st century. All businesses need to be aware of the regulations and do what they can to comply and employ those services to mitigate the risk of violations. Do not let your business be a TCPA victim. Do not let one call force you to lose it all. Be pro-active. Speak with your attorney and take steps to protect your business.

To learn how you can protect your business with TCPA scrubbing, click here.


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