Tuesday, February 10, 2009

Sundance Vacations Sweepstakes

UPDATEDeputy Attorney General, Nicholas Kant, of the New Jersey Department of Law and Public Safety, has investigated Sundance Vacations for violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”) and/or the regulations promulgated thereunder, N.J.A.C. 13:45A-1.1 et seq. (“CFA” Regulations).  Sundance Vacations investigated by the State of New Jersey

For those who may be interested, Facebook has a page entitled: "Boycott Sundance Vacations" and it appears to be growning very quickly.

The Better Business Bureau REVOKES Sundance Vacations business accreditation!!! 

In case after case of sales organizations that use sweepstakes as a means of skirting the Do-Not-Call regulations the FTC has taken remedial action. Nonetheless, Sundance Vacations continues to defy the DNC regulations.  Now what does that tell you about the ethics and integrity of the company? Sundance doesn't care about what's illegal or unethical; their only concern is what they can get away with! This company will never do the right thing, unless it is compelled to do so!  (See the three links below addressing the Do-Not-Call Violations via the sweepstakes ruse!)

As far as that promotional cruise is concerned this post by MichaelS details the very inconvenient and impractical restrictions of the promotional cruise offered by Sundance Vacations. In addition, that Sundance Vacations promotional cruise could actually cost you $800-$1,000, as explained by Mreddy of Elizabethtown, PA., one of dozens of complaints submitted to Rip-Off Report.com.  Also see the following post dated 04/08/10: "The rooms offered are BUNK BEDS!!!"

The FTC warns against "trip trap" offers similar to those offered by Sundance Vacations' Sweepstakes.

Consumer reporter, Jeff Gelles, detailed in the Philadelphia Inquirer on August 9, 2009 the ordeal of a young couple foolish enough to attend the Sundance Vacations high pressure sales pitch. (The entire article is available at the top of the Boycott Sundance Vacations Facebook page)

Harry Gross, well respected financial adviser, warns against "free seminars" conducted by "travel clubs" in the Philadelphia Daily News on November 10, 2009.

Then you have this article by well respected travel journalist, Rosemary McClure, of the Los Angeles Times reprinted in the Chicago Tribune.

Three independent highly regarded consumer reporters advising against attending any of those vacation travel clubs high pressure sales pitches; again, what does that tell you?

This article does not comment on the Sundance Vacations selling practices, procedures or overall costs. If you have already purchased a Sundance Vacations membership and you are interested in all the additional fees or terms and conditions for using the program that detailed information may be obtained by going to the following article: Sundance Vacations Membership - What It Really Costs.  Also see: Sundance Vacations Complaints And Cancellation Procedures.

Here is a very detailed post on various other Sundance Vacations' hidden costs and restrictions.

That being said, this particular article focuses on Sundance Vacations' deliberate disregard for one of the most popular legislative acts in American history, the federal and state “Do Not Call” (DNC) regulations and requirements. An opinion based on various litigation instituted by the Pennsylvania Attorney General and the Federal Trade Commission as also detailed in this article. As of July 27, 2010, the Federal Trade Commission (FTC) has reported that there are 200,000,000 names registered on the federal and state DNC lists. But Sundance Vacations apparently doesn't care about your right to privacy, they are going to call you whether you like it or not!

Quoting from a Sundance Vacations website: “Some Internet posters accuse us of harassing potential clients. Why, they want to know, do we continue phoning if there has been no response to our calls and messages? The answer is, our marketing goal is just one live contact. If the result of our call is no answer, or an answering machine, we call you back.”

I take issue with that deceptive argument. In my view Sundance Vacations just doesn’t understand human nature, or just doesn’t care, although I suspect the latter. There is nothing more diverse in this world than human personality. Some of us are introverts, some are extroverts. Some of us are outspoken, some are reserved. Some of us are aggressive, some are passive. Some of us are more articulate than others so we all have different ways of saying different things. For example; if a company calls someone 6, 8 or 12 times, leaves a brief message with a toll-free return call phone number and that person declines to return those dozen or so calls, what does that tell you? What does that say? I think it’s saying they don’t want “one live contact!” I think it's saying leave us alone and please respect our privacy. What other plausible conclusion is there? You call someone a dozen times, leave a toll-free return call phone number, but they refuse to call you back; my God the message is crystal clear, they’re not interested. To brazenly deny that obvious conclusion clearly violates the DNC provisions!

Sundance Vacations is very adept at self promotion such as the Stevie Awards where companies are encouraged to enter the competition in various categories (in other words, they nominate themselves) and an entry fee is charged per entry. Now how credible is that? It is my opinion that those self promoting "awards" are designed distractions and have no credibility because all the farmers are going to tell you that their crop is good! Ask yourself why? Why does Sundance Vacations go to such extreme measures to tell the consumer how good they are, over and over again! See: Sundance Vacations Propaganda

Sundance Vacations is headquartered in Pennsylvania and operates seven sales centers in five states. (Illinois, New Jersey, Pennsylvania, Ohio, & Wisconsin) Sundance Vacations conducts sweepstakes as a means of obtaining telemarketing and e-mail contact information. Those sweepstakes are at fairs, festivals, sporting events, malls and other shopping venues and various social gatherings. While attending those events the consumer is accosted by a Sundance Vacations representative and solicited to enter the Sundance Vacations Sweepstakes. Sundance Vacations has taken the position that the sweepstakes entry form is tantamount to an "express authorization" or a "written" request for a telemarketing solicitation call. In fact, on February 19, 2009, I personally experienced this aggressive solicitation at the Greater Philadelphia Home Show at the Valley Forge (PA.) Convention Center. The Grand Prize was a "$50,000 Free Home Makeover."

The Pennsylvania Attorney General has filed law suits against other vacation sales and marketing organizations that use sweepstakes, contests, drawings or promotions as a means of making an end run around the DNC regulations. The most recent case was filed against two vacation sales organizations. The case was filed in the Commonwealth Court of Pennsylvania for the Middle District, docket No. 479 of 2008. The following 10 allegations, which specifically refers to the marketing practices of those vacation sales organizations, were excerpted VERBATIM from that consumer protection law suit:

1. “Some of these telephone solicitation calls were made to consumers who provided contact information to the Defendants as part of a contest, drawing or promotion.”
2. “Defendants maintain that consumers who completed a form as part of a contest, drawing or promotion waived the protections of federal and state Do Not Call laws by providing the Defendants with their contact information.”
3. "Pennsylvania's Telemarketing Act provides for several exceptions to the definition of telephone solicitation call."
4. “Pennsylvania’s Telemarketing Act does not provide for a waiver of the Do Not Call provisions.”
5. “The form provided to and returned by consumers measures approximately five and one-half inches by three and three-quarter inches and contains more than 790 words of fine print on it’s reverse, in typeface as small as three point font.”
6. “This statement is neither clear nor conspicuous.”
7. “The completion of these forms does not constitute an express request by a residential or wireless consumer for a telephone solicitation call.”
8. “A consumer cannot expressly request a telephone solicitation call without a clear and conspicuous disclosure about the telephone solicitation calls they may receive.”
9. “A consumer cannot expressly request a telephone solicitation call from ‘affiliates or agents’ who have not been identified to them.”
10.“The remaining purported disclaimers and disclosures contained on Defendants’ forms are neither clear or conspicuous.”

Each one of those 10 allegations could categorically be attributed to Sundance Vacations. The Attorney General's law suit details many other consumer protection violations as relates to promotional gifts and other inducements offered if the consumer attends a sales presentation, as is the requirement with Sundance Vacations. There is no commitment to enter the sweepstakes, but to receive the promotional gift the consumer must attend a hard sell vacation club sales presentation.

In defense of the myriad complaints on the Internet, the then Sundance Vacations communications director, Amanda Miller, (the current communications director is Scott Carey) responded that Sundance Vacations only calls those consumers who have given them “written” permission to call. Quoting the communications director: "The Sundance Vacations marketing policy is to contact consumers who give us WRITTEN (emphasis in original) permission to contact them. You can view this information on our terms and conditions page." That "written" permission is based solely on the fact that they submitted a sweepstakes entry form, notwithstanding the AG's position that: “Pennsylvania’s Telemarketing Act does not provide for a waiver of the Do Not Call provisions.”

The following is a copy of that Sundance Vacations sweepstakes entry forms' "terms and conditions" as referenced by the communications director. The Sundance Vacations disclaimer is reproduced in the actual size typeface font that is on the reverse side of the sweepstakes entry form. The actual form measures exactly five and one-half inches by five and one-half inches and contains approximately 795 words which the consumer is expected to immediately read and fully understand. Nevertheless, the fact remains that the sweepstakes entry form does not constitute "express authorization" or "written" permission to call consumers that may be registered with the federal or state DNC lists, despite the specious claims of the Sundance Vacations communications director.

"By submitting this entry you fully and unconditionally agree to accept these Official Terms, Conditions & Rules (“Terms”) of the “Dream Giveaway“ contest (“Contest”), and waive any right to ambiguity herein. This Contest is being sponsored by Sundance Vacations, Inc., and its affiliates and co-sponsors (located in NJ, OH, PA, WI, IL, TX, OK, and GA) (“Sponsor”). No purchase or payment is necessary to enter or win, nor will any purchase or payment improve the odds of winning. This Contest is void where prohibited by law and where applicable state regulation and/or licensing requirements have not been met. ELIGIBILITY: Must be at least 21-years of age with a household income of no less than $25,000 per year. Sponsor employees, their immediate family members and individuals involved in any aspect of the Contest are not eligible. One entry and one “Bonus Entry” per household (“Bonus Entry” terms are set forth below). Contest runs from 1/01/09 to 12/31/09, entries must be received no later than 12/31/09. ODDS OF WINNING: Only one Grand Prize winner will be selected. Odds of winning depend on total number of eligible entries received. Each eligible entry has an equal chance of winning. SELECTION OF WINNER: One (1) Grand Prize Winner will be selected from a random drawing of eligible entries on 02/01/10 at Sponsor’s address. Grand Prize Winner will be notified by Sponsor and will be required to complete affidavits of eligibility, liability releases, and where lawful, publicity releases. In the event Sponsor cannot notify Grand Prize Winner within a reasonable time period, an alternate winner will be selected by Sponsor and notified in the same manner as above. GRAND PRIZE: One (1) Grand Prize Winner will receive the choice of (a) an automobile of Grand Prize Winner’s choice (Maximum MSRP $70,000 and subject to availability), (b) The display prize item and cash (the verifiable retail value of display prize and cash awarded to equal $50,000), or (c) $50,000 cash. Grand Prize Winner must notify Sponsor of prize choice upon receipt of notification of winning. Automobile prize will require Grand Prize Winner to pay proper taxes, pickup and delivery costs, and any and all costs over $70,000 related to award of prize. Cash prizes will be awarded within 30 days after Grand Prize Winner is selected. Automobiles will be awarded within 90 days after Grand Prize Winner selected and notifies Sponsor of automobile of choice. Sponsor reserves right to replace cash prize with alternate prize of equivalent verifiable retail value. Automobiles are subject to availability. No additional money, fees, or consideration is required to redeem prize. SALES PRESENTATION/GIVEAWAYS/BONUS ENTRY: By entering this Contest you authorize Sponsor and its affiliates and co-sponsor dealership posted on display vehicle to contact you by phone (calls may be monitored and recorded), automated phone equipment and/or pre-recorded messages, mail, and e-mail about this Contest and travel and automobile related goods and services. Sponsor may contact entrant to attend a sales presentation (approx. 60 min.) about Sponsor’s travel-related goods and services. Entrants who attend a sales presentation will be eligible for an additional “Bonus Entry” in contest, and will receive one (1) additional gift of either (1) a 2-night getaway (retail value $200), (2) a 4-day/3-night cruise to the Bahamas including round trip airfare for two passengers (retail value $1200), or (3) an online shopping certificate (retail value $500) or a gift the sponsor deems of equal or greater value. The gifts may require advance reservations, may have blackout dates or limited availability, and may require a $50 per-person refundable security deposit. Traveler is responsible for taxes, port charges and securities fees, which vary but may total $189-$225 per person. The shopping certificate applies to specified website and allows purchase of items from specified website with MSRP equivalent to stated certificate value. Shipping and handling fees ($0.99-$129.00 per item) will apply. Sponsor gifts are not a prize you have won and are subject to change at Sponsor’s discretion. OTHER: By entering you agree that disputes related to this Contest will be governed by Pennsylvania law, and you consent to exclusive jurisdiction thereof by Pennsylvania’s courts. Except where prohibited by law, Grand Prize Winner’s acceptance of prize constitutes agreement for Sponsor to use his or her name, photograph, likeness, statements, biographical information, voice, city and state, for advertising purposes, in all forms of media now and hereafter known, throughout the universe, without compensation. This Contest may be promoted in other states or areas under different promotional names. For official rules, names of previous winners (90 days after completion of Contest), privacy policies, opt-out policies, and information on how to obtain a “Bonus Entry” without attending sales presentation, mail a request (with self-addressed stamped envelope) to Sundance Vacations, Inc. at Attn: Automobile/Cash Giveaway, 264 Highland Park Blvd., Wilkes-Barre, PA 1870."

The average preoccupied consumer hastily submits the sweepstakes entry form with the hopes of wining the Grand Prize, but certainly not to invite or authorize relentless telemarketing calls bordering on harassment. That flies in the face of common sense; why would they be on the DNC list in the first instance if not to deter relentless and invasive telemarketing? Think about it in terms of consumer intent as specifically addressed in the above referenced consumer protection law suit. Did the consumer submit the Sundance Vacations sweepstakes entry form with the hopes of winning the Grand Prize; or did the consumer submit the Sundance Vacations sweepstakes entry form as an “express authorization" or "written" request for a telemarketing solicitation call. It is irrelevant that the consumer provided the contact information which is ostensibly required in the event that they are the Grand Prize winner. Sundance Vacations' Grand Prize winners are notified in person, (as are most sweepstakes winners) so the need for their phone number is for solicitation purposes only. It is also irrelevant that the sweepstakes sponsors actually selects one Grand Prize winner each year. The issue is not the possible legitimacy of the sweepstakes, but rather the illegal and unethical method used to evade DNC regulations. How a logical connection is made from an aggressively solicited and hastily submitted sweepstakes entry form to an "express authorization" or "written" request for a telephone solicitation call escapes my comprehension! The front of the form also asks, "Are you interested in purchasing an automobile within the next three months." How is a "Free Home Makeover" and/or an interest in "purchasing an automobile" relevant to vacation sales? Something's wrong with that picture because what Sundance Vacations sells is vacations! Not "home makeovers" and or "automobiles."

As relates to the concept of intent, the Sundance Vacations communications director posted an interesting question, also on the Internet: “Is a positive message misleading?" Absolutely, if the intent is to mislead! For example: according to the AG's lawsuit, “consumers were told that they had not won the ‘grand prize,’ but had been selected to receive other promotional gifts.” That's virtually the same precise words used by Sundance Vacations. Regardless of the semantics, the psychological ploy is obvious; the intent is to knowingly instill the impression that they had won something, without actually using the word "won." That's a "positive message," but the intent is to subtly deceive the consumer into believing that they won something! Winning something creates excitement! Wow, let's go there and get our prize! The AG's lawsuit also claims that, "Virtually any consumer with a checkbook and a pulse allegedly qualified as a 'winner' in these promotions." Likewise, "virtually any consumer" who submits a Sundance Vacations sweepstakes entry form will be /selected/chosen to receive some gift, but only if they attend the high pressure Sundance Vacations sales pitch! I use the words "high pressure" because that is the consensus of many consumers who provided information contained in this article.

Sundance Vacations was sued for falsely using the word "won." On November 6, 2006, a consumer fraud civil law suit was filed against Sundance Vacations, Inc. (Bailey v. Sundance Vacations et al., Superior Court of New Jersey, Bergen County, docket number L8256-06) The civil suit detailed numerous violations of N.J.S.A. 56:8 et seq. of the New Jersey Consumer Fraud Act, by utilizing “false pretenses through the use of unconscionable commercial practices.” Sundance Vacations settled the case out of court.

The bottom line is what is the sweepstakes sponsors’ intent? Is that intent to merely advertise and give away promotional gifts? Or, is that intent to harvest contact information to solicit the consumer. This is not a Publisher’s Clearing House sweepstakes conducted with the purpose of selling magazines by mail. This is a sweepstakes conducted with the primary purpose to harvest contact information for telemarketing in violation of the federal and state DNC regulations and requirements!

Certainly, once those phone numbers harvested by the sweepstakes are filtered through the federal and state DNC lists, Sundance Vacations may telemarket those consumers. But it would be utterly ridiculous to insist that everyone who entered the sweepstakes and provided contact information was "expressly" requesting a telephone solicitation call, or granting “written” permission for a telephone solicitation call. I have no way of knowing the numbers, but I think it's safe to assume that a very significant percentage of those consumers contacted by Sundance Vacations were just not interested in anything Sundance Vacations has to offer! Therefore, it stands to reason that same significant percentage of consumers did not submit the sweepstakes entry form to expressly request a telephone solicitation call, or to give "written" permission to call them.

It is literally inconceivable that every consumer who entered the sweepstakes did so as an “express authorization” and/or “written” request for a telemarketing solicitation call, despite the fact that they may be on the DNC listings to deter those very same calls – it’s just not plausible!

The Attorney Generals' lawsuit is clearly supported by the plain language of the DNC legislation, despite the fact that many marketing people would like to believe that a sweepstakes entry form is equal to an “express” or "written" request or permission for a telephone solicitation call. The FTC has also taken that same position that a sweepstakes entry form does not constitute an “express” or "written" request or "permission" for a telephone solicitation call. Consequently, the FTC has sanctioned many sales organizations using the sweepstakes ruse to evade the DNC regulations. It would be a stretch to suggest that both the AG and the FTC got it wrong! Moreover, that same position could be argued in a private class action law suit claiming the invasion of privacy by uninvited, unwelcome and relentless telephone solicitations in violation of the federal and state DNC legislation. It demands repeating, the DNC legislation is one of the most popular laws in American history and the regulatory agencies are admirably and constantly monitoring the evasion of that law! Imagine what a private class action could accomplish.

At the end of this writing is a synopsis of an article authored by Tim Gray, TMCnet Web Editor, which details other law suits against vacation sales organizations that, like Sundance Vacations, use sweepstakes, contests, drawings and promotions as a means of harvesting contact information and then telemarketing those unwary consumers who are registered on the DNC lists. It’s an illegal practice; no ifs ands or buts!

The Sundance Vacations regulatory attorneys must have their heads in the sand! On the other hand, possibly Sundance Vacations simply does not want to voluntarily comply with the DNC regulations.

On a personal level if you entered the Sundance Vacations Sweepstakes and you have been the recipient of uninvited or unwelcome telemarketing calls, and you are registered on the federal or state DNC lists, you may call the FTC at its toll-free hotline at: 1-888-382-1222. You may also submit your complaint online at DONOTCALL.GOV or you may call the specific state in which Sundance Vacations has sales offices. The consumer is entitled to financial compensation for the exposure of telemarketing calls in violation of the DNC lists.

(1) Illinois 1-800-386-5438 - Illinois DNC Website
(2) Indiana 1-800-382-5516 - Indiana Consumer Protection Division
(3) New Jersey 1-800-242-5846 - New Jersey DNC Website
(4) Pennsylvania 1-800-441-2555 - Pennsylvania DNC Website
(5) Wisconsin 1- 800-422-7128 - Wisconsin DNC Website 


January 29, 2009

FTC Comes Down Hard on Do Not Call List Violators

By Tim Gray, TMCnet Web Editor

The “Do Not Call” legislation has snared one of the nation's largest vacation sales companies to the tune of nearly $1 million for making phone calls to people on the DNC list, according to federal regulators.

The alleged culprit, Westgate Resorts, based in Orlando, Fla., is accused of making thousands of telemarketing calls to people on the national Do Not Call list. The Federal Trade Commission (FTC) says the company has agreed to pay $900,000 to settle the charges.

According to the FTC’s complaint against the Westgate, the company purchased the telephone numbers of consumers who answered travel-related survey questions on the Web site, such as “Select your favorite travel destination.”

However, many of these telephone numbers were on the DNC Registry and the Web site never notified consumers that they would receive telemarketing calls as a result of submitting information.

The commission also announced a $275,000 settlement with another Florida-based travel company, Accumen Management Services Inc., and its subsidiary, All in One Vacation Club. The company made telemarketing calls to consumers who had filled out entry forms for a sweepstakes to win vacation packages. Many of those called, the FTC said, were on the Do Not Call registry and did not agree to receive the telemarketing pitches for timeshares and vacation getaways.

In both instances, the FTC says consumers did not reach out to the defendants seeking information about their products or services before receiving a telemarketing call. This is a principal tenant of the legislation that would have made the call legal. Instead, the agency says, the companies did not have an “established business relationship” with the consumers nor did the consumers give the defendants “express” permission to call.

Without consumers’ express written agreement and without an “established business relationship” with them, making telemarketing calls to registered numbers is illegal.

The fines go to the U.S. Treasury.