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Using Investigative deception in TCPA litigation
There is a well known axiom in legal circles – you can’t sue who you can’t identify. Telemarketer’s primary method of defending lawsuits is hiding their identity by using fake business names and spoofed calling numbers. Even if the call’s recipient learns a real business name during the call, without something concrete like a follow…
Federal court gives roadmap to holding sellers accountable for the actions of their telemarketers – agency law
Most telemarketing calls are initiated by someone other than the seller which is why Congress allowed recipients of unwanted phone calls to hold the telemarketer and the seller accountable together: TCPA 47 U.S. Code § 227(c)(5): “A person who has received more than one telephone call within any 12-month period by or on behalf of…
Fighting off telemarketer fraud counterclaims
A frequent topic on this blog is playing defensive ball when suing telemarketers. Sometimes getting countersued is unavoidable due to the nature of the suit. A well know TCPA defense attorney reflexively countersues whenever possible as part of his negotiating style. We can study lawsuits where these claims were defeated to replicate their results. Today…
Get your 47 CFR § 64.1200(d)(4) on – did your unwanted texts identify the sender?
47 CFR § 64.1200(d)(4) says: “Identification of callers and telemarketers. A person or entity making an artificial or prerecorded-voice telephone call pursuant to an exemption under paragraphs (a)(3)(ii) through (v) of this section or any call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the…
The pros and cons of naming corporate executives in TCPA lawsuits
A frustrating result in some of my consumer advocacy work is seeing corporate executives perpetrate frauds and torts, and only the company they work for gets punished. And that is rare enough. I mostly practice in Washington State and our courts try to discourage this behavior by allowing plaintiff’s to name corporate officers if they…
Trebling your TCPA damages under 47 U.S. Code § 227 – when telemarketer’s violations are willful or knowing
We all know the TCPA’s statutory damages are $500 “for each such violation” under 47 U.S. Code § 227(b)(3)(B) for robocalls, and up to $500 under 47 U.S. Code § 227(c)(5)(B). Both sections allow a tripling/trebling of the damages “If the court finds that the defendant willfully or knowingly violated the regulations prescribed under this…
Don’t rely on conclusory allegations in your telemarketing lawsuit
It is surprising how many attorneys write poor complaints that get rejected at the motion to dismiss stage. Here is another one and it cost the plaintiff in the case big. In telemarketing lawsuit Anderson v. Farmers Insurance, 2024 WL 4656218 (N.D.Ok. Nov. 1, 2024), plaintiff Anderson registered his phone number on the national do…
Admissions vs Stipulations – a telemarketing case highlights the difference
The three common written forms of lawsuit discovery are interrogatories, requests for documents, and requests for admissions (RFAs). The purpose of RFAs are generally to establish the truth of certain facts or the authenticity of documents before a trial so that they you don’t waste a lot of time with establishing known or undisputed facts…
Admissions vs stipulations in telephone consumer protection act cases
Fundamentally, a lawsuit is either a dispute of facts, a dispute of law, or both. When both sides want to narrow down factual disputes, they can do so through federal rule of civil procedure 36 requests for admissions (RFAs), or they can stipulate to certain facts. What is the difference? Which is better? The TLDR…
Mutual of Omaha says sure, maybe we illegally called you, but you lied to us on the call!
Telemarketers don’t have a problem with calling without consent and lying about who they are while doing it, but they get very upset if a consumer lies to them on the phone as part of their investigation. United of Omaha is certainly peeved with Mr. Dobronski in telephone consumer protection act lawsuit Dobronski v. Daraujo…
The consequences of simple mistakes in your TCPA telemarketing lawsuit
This post isn’t knocking anyone. Even seasoned attorneys can have a poorly written complaint, and often times it doesn’t seem to matter, except when it does. Learn from the experiences of others. This is an example of a time when it did matter, and what can be learned from the failure. In TCPA lawsuit Bank…
Identifying the telemarketer who is calling you
Many illegal telemarketing calls are spoofed – the calling number on your screen is fake. But some are real, often from screwup or arrogance. Knowing the calling number can help you identify who is dialing. Phone numbers in North America are organized by NANPA – North America Numbering Plan Administrator www.nationalnanpa.com. They have a tool…