Telephone Consumer Protection Act ("TCPA")

Ocwen TCPA Class Action Settles

November 7, 2017 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Although the Telephone Consumer Protection Act (TCPA) gives consumers the right to claim thousands of dollars in punitive damages for each illegal phone call made to their cell phones, there are valid reasons for plaintiffs to seek a settlement that pays only a fraction of their eligible damages.

In a recent proposed class action consumer lawsuit against Ocwen Loan Servicing, LLC, the parties have agreed to a financial settlement of $17.5 million to cover the claims of more than 1.6 million customers. Attorneys representing the class of plaintiffs have said they will request reimbursement for up to $100,000 of their actual expenses, fees of no more than one third of the total settlement fund ($5.8 million), and an incentive award of $25,000 for each of the three named plaintiffs who came forward to file the TCPA lawsuit.

After all that, each plaintiff will receive anywhere from $55 to $90, depending on their individual claims. Any funds that are left over after all payments have been made will go to the National Consumer Law Center and the Public Justice Foundation. None of the funds will revert back to Ocwen, as is sometimes the case in class action settlements. Continue reading ›

Wells Fargo Settles Class Case Claiming That it Violated the TCPA by Making Auto-dialer Collection Calls to Cell Phones Without Consent

January 1, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Those in debt know what a hassle it can be to deal with phone calls from debt collectors. They can be relentless, often because they have to be, but when they step outside the bounds of the law, then the debt collectors may be the ones that have to pay up. If debt collectors use automated dialing systems to call people on their cell phones, they may be in violation of the federal Telephone Consumer Protection Act (TCPA).

The TCPA was enacted to protect consumers from the the invasion of privacy, annoyance and waste of time, or having to pay for calls they receive from companies using automated dialers. These calls are disruptive and can cost money. When cell phones became more popular many users were charged for the calls they received, as well as the ones they made. This meant that promotional calls that companies sent out to many customers using autodialing systems were not only annoying customers, they were costing them money if they don’t have unlimited plans. The TCPA made it illegal for companies to use autodialing systems to contact customers in non-emergency situations without the customers’ express consent. Since the law has been enacted, plaintiffs and defendants have argued over what constitutes consent and the definition of an auto-dialing system. 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 ›

Guess Jeans Sued in TCPA Class Action

February 7, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

While many of us have come to accept annoying advertisements as part of our daily lives, few of us expect to pay money out of our own pocket in order to be annoyed by promotional advertising. It was with this fact in mind that the Telephone Consumer Protection act (TCPA) was enacted to protect consumers from paying for phone calls that companies make to advertise their products or services.

While calling current and potential customers has long been an advertising method for companies, consumers began complaining with the advent of cell phones. This is because cell phone users are charged for each call that they receive, or get a deduction of minutes from their plan, regardless of whether or not the call is authorized. The TCPA was therefore enacted, making it illegal for companies to make unauthorized calls to consumers except in the case of an emergency.

Along with cell phones came the invention and the increasing popularity of text messages. As technology evolves, the law is forced to change in order to accommodate it, especially when our forms of communication are affected. A court is San Diego will soon determine if text messages should be treated the same as phone calls under the TCPA.

The lawsuit involves a class of consumers who allege that Guess? Inc. contacted them through text messages in violation of the TCPA. According to the complaint, this is a result of the fact that marketers have recently been “stymied by federal laws limiting solicitation by telephone, facsimile machine and e-mail have increasingly looked to alternative technologies through which to send bulk solicitations to consumers easily and cheaply”. Advertisements sent through facsimile machines are also illegal, because the consumer is the one that has to pay for the paper and ink used to print the facsimile when it comes through.

Faridah Haghayeghi, the named plaintiff in the class action lawsuit, alleges that she received several unsolicited text messages from Guess? Inc. in 2013, but according to the complaint, the company has been sending these mass text messages to consumers since at least 2009, if not earlier. The aim of the text messages was allegedly to promote the defendant’s products to current and potential customers. Haghayeghi alleges that she did not provide Guess? Inc. or any of its agents with prior consent to send her these text messages and that the company never told her that it would use her cell phone number to send her promotional text messages.
The lawsuit alleges that each text message was created using equipment which had the ability to store or produce telephone numbers to be called, using a random or sequential number generator. Because of this, the lawsuit is claiming that these mass text messages are prohibited under the federal TCPA.

The TCPA entitles plaintiffs who file successful complaints under the statute to $500 for each violation of the TCPA. In accordance with the statute, Haghayeghi is filing the lawsuit in pursuit of $500 in statutory damages for herself and for each member of the class.

TCPA Texting Class Action Alleges Insurance Carriers Violate Privacy Rights Through Illegal Text Message Campaign

December 15, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) which specifically prohibits the use of auto-dialers in making calls to a wireless number without the prior express consent of the person being called. The only exception to this rule is in the case of an emergency. One of the main reasons for this Act is the fact that owners of wireless phones are often charged for their incoming calls as well as the calls that they make. This means that, aside from being annoying and potentially time consuming, the telemarketing calls are also costing their targets money out of pocket.

Despite the institution of this Act, companies appear to be unwilling to cooperate, as evidenced by the fact that companies which use auto-dialers to contact potential customers are still thriving. One of these companies is Variable Marketing, LLC and it has recently been hit with a class action lawsuit alleging violations of the TCPA.

Filed in the District Court for the Northern District of Illinois, the lawsuit names American Automobile Association, Inc.; Farmers Group, Inc.; Government Employees Insurance Company; Nationwide Mutual Insurance Company; State Farm Mutual Automobile Insurance Company; and Variable Marketing, LLC as defendants. All of these defendants allegedly used a lead-generator marketing company (Variable Marketing), to market their services in violation of the TCPA.

The plaintiffs are five consumers who received calls from Variable on their cell phones. When they answered or returned the calls, a pre-recorded message played before they were able to reach a live operator. According to the lawsuit, only one of the five plaintiffs had ever had any business dealings with any of these insurance companies prior to receiving the call and none of them had expressed their consent to receive these calls. The plaintiffs are seeking statutory damages and injunctive relief under the TCPA.

The proposed class is defined as “All persons within the United States who received a non-emergency telephone call from Variable, placed while Variable was acting on behalf of the Insurance Company Defendants, to a cellular telephone through the use of an automatic telephone dialing system or an artificial or prerecorded voice.”
This proposed class could end up consisting of tens of thousands of members. Under the law, each of those members is entitled to up to $1,500 for each call that they received from Variable. This brings the total award sought by the plaintiffs to over $5,000,000, not including interest and attorneys’ fees.

Despite the fact that Variable is the company which actually placed the calls using an auto-dialer, all of the companies for which Variable did this are responsible for having violated the TCPA. The Federal Communications Commission (FCC), the agency which Congress put in charge of regulating and implementing the TCPA, determined that “a company on whose behalf a telephone solicitation is made bears the responsibility of any violations.” According to the FCC, the seller and the telemarketer do not need a contract in order for the seller to be liable. All that the FCC requires is that the telemarketer have “the apparent (if not actual) authority” to make the calls.

A representative of Variable told one of the plaintiffs that he was calling on behalf of “lots of the big [insurance companies], including Geico and AAA.” This suggests that Variable was given authority to use the Insurance Company Defendants’ trade name, trademark and service marks. This fulfills the requirement of “apparent (if not actual) authority” for holding the insurance companies accountable for the damages incurred as a result of their violation of the TCPA.

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.