Dial O for opportunism

“More than 25 years after its passage, a federal telemarketing law hasn’t just created a cottage industry for lawyers – it has spawned a group of professional plaintiffs like [Melody] Stoops who are armed with several cell phones for the purpose of receiving debt collection calls often intended for other individuals.” [John O’Brien, Legal NewsLine]

Forethought goes into the question of how to be legally injured by unlawful calls in the manner most lucrative under the Telephone Consumer Protection Act (TCPA):

Individuals receiving calls they believe to be in violation have two options to try to maximize recovery.

-Answer the phone, tell the company to stop calling and hope the calls keep coming. Those calls could be construed as “willful” violations of the TCPA and lead to triple damages; or

-Don’t answer the phone, never tell the company to stop calling but chronicle how many times it does. This would lead to only $500 claims but keeps the company calling.

The “wait and build damages” strategy can sometimes pay off nicely:

“Mr. Spencer is seeking to exploit the TCPA to recover a $2.7 million jackpot in statutory penalties because he inadvertently received – on a five-dollar disposable cell phone that he seldom used – emergency text alerts that the previous user of his cell phone number had requested,” AT&T’s attorneys wrote in November while asking for summary judgment.

“(Spencer) waited for the text alerts to accumulate, and then filed this lawsuit seeking millions of dollars unrelated to any alleged harm that he experienced.”

Later entries in the three-part series include part two, “the story of a Polish immigrant who has allegedly made more than $800,000 with a phone number belonging to his ex-wife,” and part three, on a defendant firm that struck back with racketeering suit against a prolific California attorney who has filed many TCPA claims. (earlier)

P.S. And related, just out today: junk-fax suits, covered here extensively in the past, “are active in industries that still rely on faxes for conducting business, such as hospitality and health care, a review of court filings shows. Recent lawsuits complain of unwanted faxes hawking medical supplies, pet medications, air conditioners and mortgage refinancing.” TCPA is nicknamed Total Cash for Plaintiffs’ Attorneys [Sara Randazzo, Wall Street Journal]


  • Um. Stop violating the Act and the lawsuits will stop, or you will win. I have my phones on the do not call list and I still get calls. I tell the callers to stop calling, and I still get calls. I am not litigious, so I don’t sue. But I appreciate those who do.

    If I were to make one change in the law, it would be that recipients would have to prove that either 1) the consumer him/herself asked the calls to stop or 2) the consumer show that the caller is in gross disregard of the law (by, for example, making hundreds or thousands of calls in violation of the law).

    I have little sympathy for the attorney in CA, who is tricking companies into calling. But, then again, I have little sympathy for the companies, either.

  • I would prefer the market solve this. Allow me to set the rate at which people may call me. If I get $5 from the caller for every unwanted call I get, I wouldn’t mind the interruption. There could be a list of numbers that may call me without getting charged, and there could be an easy way to immediately refund that $5 (or whatever my rate is) if I get a call that I want to refund (press #4 or whatever). In the digital age, transferring the right funds to the right accounts each month shouldn’t be that difficult.

    This solves the problem without any regulation. The problem is that the telemarketers are getting a good – my time – for almost free. As any freshman econ major can tell you, an artificially low price will result in over-consumption. I get significantly more telemarketing calls than I do calls from people I know. While this is probably partly a product of my not having friends, it also shows regulation is not fixing this. Make telemarketers pay a market rate for my time, and they’ll call only if it’s an efficient thing to do. Which is never.