Prerecorded Telephone Call

Supreme Court Rejects Pick Off of Class Representative and Defendants’ Attempt to Nullify a TCPA Class Action

March 3, 2016 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

It is common for parties involved in a lawsuit, especially a large class action, to settle their legal claims outside of court, instead of pursuing the dispute all the way to a court ruling. But just because one party makes an offer, does not mean the other party is required to accept that offer. Each side will agree to or reject an offer to settle the dispute based on a number of factors, of which the amount of the settlement is just one.

In some cases involving statutory damages, such as allegations of violating the Telephone Consumer Protection Act (TCPA), if a defendant offers to pay the lead plaintiff all actual and statutory damages in full, the plaintiff’s claims are considered null and void, regardless of whether the plaintiff accepts the terms of the settlement. This allows defendants to avoid a large and costly class action lawsuit by paying off the claims of just one plaintiff. But that recently changed with a ruling by the Supreme Court. Continue reading ›

Case Seeking Class Action Status Against Aaron’s For Alleged Use of Spyware Heads to a Second Round Before the Trial Court

June 15, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

After George Orwell’s novel, “1984”, was published, the term “Big Brother” became a household name. It is used to refer to any institution or practice that allows companies or organizations to see what people are doing no matter where they are. The term has been applied to everything from traffic light cameras to Google’s practice of tracking consumers’ search histories.

But most disturbing of all is a recent lawsuit against Aaron’s Inc., a rental company, alleging it leased computers that contained spyware. Aaron’s allegedly used the software to take pictures of people in their homes via the computers’ webcams, as well as screenshots taken while the leased computers were in use. According to the lawsuit, even when users thought their computers were turned off, the spyware could turn it on and take photos via the computer’s webcam. The information collected by the rental company in this manner allegedly included highly sensitive emails and pictures, including pictures of nude children and people having sex. Continue reading ›

GE Capital Retail Cannot Avoid Class Certification in TCPA Unwanted Cell Phone Call Class Action — Our Chicago TCPA and Unwanted Cell Phone Call Lawyers File TCPA Class Actions

April 3, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Defendants in class action lawsuits sometimes try to avoid class certification by claiming it would be too difficult to identify and find all the potential class members. But just because something is hard doesn’t mean it’s impossible or not worth doing.

GE Capital Retail Bank is the latest corporation to use this excuse in an attempt to avoid a class action lawsuit. The bank is accused of violating the federal Telephone Consumer Protection Act (TCPA) by allegedly using an autodialer to send prerecorded debt collection messages to cellphone users who weren’t even customers of the bank. Continue reading ›

7th Circuit Holds that Debt Collectors Cannot Call Cell Phones with Robo Callers to Collect Debts Once the Cell Phone Number No Longer Belongs to the Person Who Owes the Money

May 20, 2012 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The Telephone Consumer Protection Act often referred to simply as the TCPA protects consumers from unwanted prerecorded calls from advertisers and bill collectors. It is intended to stop use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed for the call and do not want to be harassed with unwanted calls.

The 7th Circuit Court of Appeals in Chicago has ruled that bill collectors violate the TCPA when they use predictive dial machines to automatically call the old phone number of persons who didn’t pay their cell phone bills after those numbers are reassigned to new people who don’t owe any money. The Court ruled that this practice was no different than a repo man breaking into a garage and taking the car of the new owner of the house once the old owner who hadn’t paid her car payments moved out. It commented on the nuisance created by predictive dialers that debt collectors uses to repeatedly make phone calls to the wrong cell phone numbers of innocent people who don’t owe AT&T a dime:

Predictive dialers lack human intelligence and, like the buckets enchanted
by the Sorcerer’s Apprentice, continue until stopped by their true master. Meanwhile Bystander is out of pocket the cost of the airtime minutes and has had to listen to a lot of useless voicemail.

In this case, AT&T hired a bill collector to call cell phone numbers at which customers had agreed to receive calls. The collection agency used a predictive dialer that works autonomously until a human voice answers. Predictive dialers continue to call numbers that no longer belong to the customers and have been reassigned to individuals who had not contracted with AT&T.

The district court certified a class of individuals receiving automated calls after the numbers were reassigned and held that only consent of the subscriber assigned the number at the time of the call justifies an automated or recorded call. The Seventh Circuit affirmed. With regard to the TCPA violation it had this to say: “An automated call to a land line phone can be an annoyance; an automated call to a cell phone adds expense to annoyance.” You can read the 7th Circuit’s opinion in Soppet v. Enhanced Recovery by downloading the file here.