TCPA (Telephone Consumer Protection Act)

Dish Outraged by Treble Damages to No Avail as Judge Affirms Award

December 2, 2017 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Violations of the Telephone Consumer Protection Act (TCPA) are subject to a judgment of anywhere from $400 per call to $1,200 per call, depending on whether the court deems the defendant to have been deliberately willful in its violation of consumers’ privacy.

The TCPA was enacted shortly after cell phones became prominent in the market and cell phone users were charged for the calls they received, as well as those they made. To protect consumers from having to pay for promotional calls they didn’t want to receive on their cell phones, legislators came up with the TCPA, which makes it illegal for companies to call consumers on their cell phone in a non-emergency situation, unless the company has received the consumers’ express permission to do so.

According to U.S. District Judge Catherine C. Eagles, Dish Network LLC earned the highest judgment for the promotional calls they had made to consumers using Satellite Systems Network and allegedly failing to properly regulate the calls that company made on Dish’s behalf.

The lawsuit was filed in 2014 by Thomas Krakauer, who claimed he received multiple calls from SSN on Dish’s behalf from 2009 to 2011, despite being on the National Do-Not-Call Registry. Since he filed is class action against those two companies, the North Carolina federal court has certified two more class actions with similar claims of having received telemarketing calls from Dish or SSN between 2010 and 2011.

In Krakauer’s case, the jury found that SSN had placed more than 51,000 promotional phone calls in violation of the TCPA in the relevant time period and awarded damages to the plaintiffs of $400 for each phone call, bringing the total to about $20.5 million.

But Judge Eagles found that treble damages were warranted, since Dish had willfully violated the TCPA by failing to oversee SSN’s telemarketing practices, despite having promised regulators it would do so. Judge Eagles therefore raised the damages to $1,200 per illegal phone call for a total of $61 million. Continue reading ›

Rite-Aid Sued in TCPA Unwanted Cell Phone Call Class Action — Our Chicago TCPA and Unwanted Cell Phone Call Lawyers File TCPA Class Actions

January 4, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

With the help of automated dialers, companies can now reach many customers all at once, via their telephones, to inform them of new products or services. These phone calls are often unwanted though, and even more so when the customers are the ones footing the bill. When everyone was using landlines, the person or company making the phone call was the one who paid for it, so although promotional calls were annoying, they never cost the customers anything. Now they can cost money and also invade privacy and waste time.

When cell phones became more common, customers were made to pay for the calls they received as well as the calls they made. This meant that some customers actually had to pay for the unwanted phone calls they got from various companies trying to sell their wares. In order to protect customers from this situation and to end the annoyance and invasion of privacy injuries if the practice could be deterred, legislators developed the federal Telephone Consumer Protection Act (TCPA) which made it illegal for companies to contact customers via their cell phones in a non-emergency situation, unless the customers provided their express permission for the company to do so. Continue reading ›

Another Class Action Filed Against an NFL Franchise for Allegedly Using Junk Cell Phone Calls that Violate the TCPA

December 27, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Advances in technology have done many wonderful things for us, but they have also made life more frustrating in some ways. For example, using automated dialing equipment, companies can now call or text many people at once at very little expense. Unfortunately, this is not only annoying for customers, it can also get expensive for some consumers and wastes time dealing with junk, unwanted messages and calls.

Before cell phones, the person or company making the call would be the one to pay for it. With the invention of cell phones though, telephone companies started charging customers for the calls they received. The result was that some customers were paying for calls they did not want to receive and were also having to waste time dealing with them. To remedy this invasion of privacy, legislators introduced the federal Telephone Consumer Protection Act (TCPA), which makes it illegal to contact someone on their cell phone in a non-emergency situation without the person’s express permission to do so. Despite this law, companies continue to use automated dialing systems to reach customers with unwanted calls and text messages.

According to a recent class action lawsuit, the San Diego Chargers NFL franchise allegedly violated the TCPA by allegedly using automated dialing systems to make unsolicited calls to sell tickets to customers. The lawsuit was filed by Paul Story who alleges he received unsolicited phone calls on his cell phone from a phone number that was associated with websites operated by the Chargers Football Company, LLC. Story alleges he never provided any signed authorization to anyone that permitted the football company to contact him on his cell phone for non-emergency purposes. Continue reading ›

AT&T Settles Alleged Unwanted Cell Phone Call Class Action for $45 Million

October 15, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Machines are wonderful pieces of technology that have made many aspects of modern life faster and easier. For example, machines that automatically dial many numbers very quickly have made it incredibly easy for large companies with thousands of customers to quickly and easily reach all (or most) of their customers. Unfortunately, many customers are not as thrilled about receiving promotional phone calls from a machine, particularly when the customers are the ones footing the bill for these calls.

In the days of landlines, phone calls were paid for by the person or entity making the phone call. When cell phones came about, that was reversed, and now many people are paying for the calls that they receive, as well as the ones they make. This means that owners of cell phones who receive automated calls on those mobile phones are not only annoyed, but may be paying for the privilege of being annoyed. To protect the rights of consumers who are being made to pay for phone calls they do not want to receive and for the annoyance and wasted time of dealing with these in most cases unwanted calls, Congress passed the Telephone Consumer Protection Act (TCPA), which makes it illegal for companies to auto-dial customers in a non-emergency situation without the express consent of the customers.

Despite the law, many companies continue to use auto-dialers to reach customers about sales and promotions. In some cases, the defendants argue that, by providing their cell phone numbers, customers are agreeing to be auto-dialed in non-emergency situations. Consumers frequently disagree with this assertion, claiming that the TCPA requires consumers to provide more explicit permission. The result is usually a lawsuit, such as the class action that was recently filed against AT&T that alleges the phone company violated the TCPA by calling customers using an auto-dialing system. Continue reading ›

Vertical Fitness Escapes Liability in Junk Text Class Action

August 2, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

With the invention of cell phones and prepaid plans, people suddenly found themselves getting charged for promotional calls and texts made by various companies. Cold calling was a standard sales technique for most companies for decades, and while some consumers may have found them obnoxious, they were never actively harmful.

That remained true so long as the companies were the ones paying for the calls that they made. When the phone bills were switched to the consumers, people started to complain. Legislators responded by creating the Telephone Consumer Protection Act (TCPA) which prohibits companies from calling or texting consumers, without the prior consent of those consumers, except in emergency situations. Since there are very few, if any, emergency situations which would warrant a company contacting its customers immediately, this effectively forbids companies from contacting their customers via phone, without the proper authorization.

With various laws like the TCPA, it can be hard for the average citizen to keep up with them all. Companies have gotten pretty good at keeping track of them, though, as well as avoiding them. Permission for the company to contact the customer, or a waiver of certain rights on the part of the customer, have become standard in all sorts of contracts. It is for this reason that consumers are often warned to read the fine print before they sign anything, though few of them actually do. Continue reading ›

LA Clippers Settle Junk Text Class Action By Providing Thousands of Tickets

July 26, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

For decades, calling customers, or potential customers, about a promotion was standard practice for most companies. Of course, many consumers found this to be annoying, but it was never overtly harmful. That changed with the advent of cell phones and prepaid plans. When landlines were the norm, the caller paid for the call. Now, cell phone users pay for the calls and text messages that they receive. As a result, legislators came up with the Telephone Consumer Protection Act (TCPA) to prevent companies from taking advantage of consumers by making them pay for promotional calls and texts. Under the act, companies are forbidden from making calls or texts to consumer phone numbers without the consumers’ express consent, except in the case of an emergency.

The Los Angeles basketball team, the Clippers, have recently settled a class action lawsuit for allegedly violating the TCPA. According to the lawsuit, fans of the California-based basketball team allegedly received promotional texts via autodialers from the Clippers without the required authorization. Rather than facing a long, drawn-out battle in court, which could be very costly and time-consuming, the Clippers and the class of plaintiffs have agreed to settle the case. Continue reading ›

State Farm Can Be Sued for Alleged TCPA Violations in Class Action for Auto-dialer Calls

July 6, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

With American legislature changing on a daily basis, it is not surprising to find that many of the laws out there contradict each other and courts are often called upon to determine which statute takes precedence. Such was the case in a recent lawsuit involving auto-calls made on behalf of State Farm.

In May 2007, Clara Betancourt applied for a car insurance policy with State Farm Mutual Automobile Insurance Company. While she was applying for the car insurance policy, a State Farm agent asked her if she would like to pay using a State Farm credit card. Betancourt agreed and the agent used the information provided by Betancourt for the car insurance application to apply for the credit card on Betancourt’s behalf. Betancourt provided the agent with her home phone number, her cell phone number, and her work phone number.

Betancourt testified that she provided these phone numbers to State Farm as emergency contact information to be used only “for an emergency or something serious.”

The three phone numbers that Betancourt provided all belonged to Fredy Osorio, with whom she has lived for many years and with whom she has a son.

When Betancourt failed to make a timely payment of the minimum balance on her credit card in November 2010, State Farm authorized FMS Inc., a collection agency, to attempt to collect the debt. State Farm provided FMS with Betancourt’s phone numbers and FMS proceeded to make 327 auto-dialed calls to these phone numbers in a six-month period. State Farm alleges that at no time did anyone answering the phone say that the number did not belong to Betancourt. By contrast, Osorio testified that he told State Farm agents to “Please stop calling” on two occasions. Continue reading ›

Bucs Pick Off Class Plaintiff in TCPA / Junk Fax Case

January 8, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

One of the requirements for filing a class action lawsuit is that the representatives of the class must have a complaint or complaints against the defendant which adequately represent the complaints of the rest of the class members. If a class representative (or representatives) is offered a settlement from the defendant which covers all of the damages to which they are legally entitled, then the plaintiff can no longer represent a class, as their complaint against the defendant would be invalidated.

This was the argument made by Buccaneers Limited Partnership when they filed a motion to dismiss a lawsuit against them. The lawsuit was filed by three dentists, a pest control service, and two others, all of whom allegedly received “unsolicited facsimiles” which were sent “for the purposes of offering for sale game tickets to the Tampa Bay Buccaneers’ home football games.” Because fax recipients have to pay for the faxes that they receive, including the paper and toner used to print the faxes, solicitations such as these are illegal under the federal Telephone Consumer Protection Act.

The Buccaneers offered to pay the plaintiffs the maximum amount of damages which they would be able to collect under the Telephone Consumer Protection Act. The plaintiffs refused the money and continued with the lawsuit. The Buccaneers then filed a motion to dismiss. Regardless of whether or not the plaintiffs accepted the offer made by the defendants, the mere existence of the offer negates any complaint that the plaintiffs have against the defendant.

The fact that a defendant can invalidate a plaintiff’s claim by offering to settle runs the risk of defendants making an offer to plaintiffs to settle the case before the plaintiffs have a chance to make their case for class certification. In order to avoid this, courts have provided plaintiffs with the option of filing for class certification at the same time that they file the complaint. They can then ask the court to wait to make a decision until they have had time to provide evidence that the case should be tried as a class action.

Because the plaintiffs in this case did not file for class certification until after the Buccaneers had already filed their motion to dismiss (and after the Buccaneers had made their offer to settle), the court determined that the plaintiffs no longer had a valid complaint against the defendants. As a result, the plaintiffs were ineligible to represent a class of recipients of facsimiles from the Buccaneers.

Under the relevant statute, the TCPA or Telephone Communications Protection Act, each class member would be entitled to $500 in damages. If all potential 100,000 class members are included, this raises the potential penalty for the defendant to $50 million. If the plaintiffs are able to prove to the court that the defendant violated the TCPA “willfully or knowingly”, then the penalty triples to $150 million. As a result, the attorneys’ fees would likewise be inflated. The awards to the named plaintiffs in the lawsuit would also rise accordingly. The court therefore determined that the plaintiffs had an ulterior motive in filing the lawsuit and granted the defendant’s motion to dismiss.

The same lawyers later filed a class action on behalf of another plaintiff and moved for class certification thus barring another pick off attempt and the class action is now proceeding. This demonstrates that the pick off tactic can sometimes do nothing but delay a class case.

You can view the full court opinion here.

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.

FTC “Consumer Sentinel” Database Relies on Individual Consumer Complaints to Monitor and Stop Consumer Fraud

February 22, 2009 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

If you believe you are the victim of a consumer fraud or scam that is harming many other individuals you should file a report with the Federal Trade Commission. The FTC maintains a Consumer Sentinel database which can be used by law enforcement authorities all over the world to fight consumer fraud. Click here if you want to learn more about that database or want to make a complaint with the FTC.

The FTC has this to say about its Consumer Sentinel database:

Your complaints can help us detect patterns of wrong-doing, and lead to investigations and prosecutions. The FTC enters all complaints it receives into Consumer Sentinel, a secure online database that is used by thousands of civil and criminal law enforcement authorities worldwide. The FTC does not resolve individual consumer complaints.