by Jeff Sovern
The next edition of our casebook will have a lot more about robocalls. According to a letter from the attorneys general of all 50 states dated yesterday, robocalls and telemarketing calls are the top source of consumer complaints at many AG's offices. The Telephone Consumer Protection Act, which outlaws some robocalls, also offers some interesting lessons about consumer lawmaking. The TCPA provides for statutory damages of $500 for each call, and even that can be tripled for willful and knowing violations. That brings us to Stoops v. Wells Fargo Bank, 197 F. Supp. 3d 782 (W.D. Pa. 2016). Stoops had purchased at least 35 cell phones. She carried the phones about with her, waiting for them to ring with illegal calls. She had filed at least 11 TCPA cases and sent at least twenty pre-litigation demand letters. Two of plaintiff’s numbers had previously been assigned to customers of Wells who had defaulted on loans and consented to receiving Wells auto-dialed and recorded calls. After Wells made numerous such calls to the numbers, plaintiff sued Wells under the TCPA. Plaintiff testified that she was bringing the lawsuits as a business. The court granted summary judgment for defendant on the ground that plaintiff had not suffered an actual injury and therefore lacked standing.
There is something quite distasteful about professional plaintiffs like Ms. Stoops. It's hard not to cheer at her getting her comeuppance. Stoops stooped to conquer (sorry). On the other hand, would the same conduct have been objectionable if the FCC or a state AG had engaged in it? Law enforcement agencies routinely engage in stings. Consumers are given the right to bring claims under consumer protection statutes like the TCPA because we need more enforcement of the law than the government can supply. Such plaintiffs are even said to serve as private attorneys general. So didn't she do exactly what the law contemplates? Did she lose because of her honesty in testifying that she was suing under the TCPA as a business? What else should we say in the casebook or the associated teacher's manual about this? Does her behavior leave a bad taste in your mouth?
Stoops was a terrible plaintiff, but the decision foreclosing her claims on a standing basis was also terrible. It fails to draw a clear line between her and other consumer activists who simply bring a lot of TCPA lawsuits, and TCPA defendants are abusing the Stoops decision to attack plaintiffs who very different from Stoops. Do people lose the right to bring TCPA lawsuits? Do people who feign interest in a telemarketed product long enough to ascertain the source of incessant calls (which is often the only way to do so) lose the right to sue? Testers have standing to sue in other contexts: https://www.eeoc.gov/policy/docs/testers.html Why not TCPA plaintiffs?
The record in Stoops was sufficient to show she consented to those calls. The decision should have stopped there.
Mr. Frank’s concern for consumers is noted, and his service as a class member in various Edelson cases is welcomed. But the arguments about higher prices follow the same well-worn CEI arguments which also seem to lead to the same place: weakening class actions and class action attorneys. I’d be willing to bet a fair amount of money that a technological solution won’t stop TCPA violations entirely and won’t have a material impact on prices.
It is harder to sue and collect from offshore entities. I doubt most people would fault TCPA plaintiffs attorneys for prioritizing the lowest-hanging fruit.
Many onshore defendants are using offshore call centers to deny responsibility, avoid accountability, and complicate discovery. Having savvy class action plaintiffs who can get through the offshore call center questions and get to the point where they can identify the onshore entity which is soliciting business through these calls.
Jeff- Indeed, a misattribution on my part. Apologies. Although you did choose that quote as your response.
Also I think Neil has taken Ms. Saunders’ testimony as my words, which may be a reflection on the formatting.
Oh yes, the industry view also appears in the casebook.
re: The FCC issued an interpretation of the TCPA permitting callers to call reassigned numbers once without running afoul of the TCPA.
Yes, that was laughable. If I am a creditor and I dial your number, which was re-assigned to someone else – and the new number owner does not answer to tell me it is no longer your number, then how would I know the number was re-assigned?
The threshold should be that I should be able to call an opted-in number until someone tells me it was re-assigned or I can lookup in a public database whether it was re-assigned.
Mr. Sovern’s comment above appears to conflate whatever he means as “robocalls” – which are not necessarily illegal — with impermissible calls under the TCPA.
The Youmail record referred to by Mr. Sovern does not distinguish between permitted and unpermitted calls. Youmail has no record of whether the consumer opted-in to the so-called robocalls received from bank, etc. I am not sure Youmail even has a record of whether the call was made by a computer or whether a number ends up on a Youmail list solely because a consumer deems it unwanted.
At its broadest, a “robocall” is a call where a computer dialed it without a human inputting the number for that specific call. It is not illegal to have a computer dial a phone if there was prior consent.
In fact, if one uses one’s iphone and hits the name of a contact to call him/her, that could be a robocall under one interpretation of the TCPA because the “computer” did the dialing without the human actually typing a number.
If my bank or other creditor calls me, I know where to call and revoke my consent.
Large companies have a lot to lose by violating the TCPA and can be held accountable by your or anyone else. They know that.
Scammers are not held accountable because they often cannot be found because they can spoof numbers, make calls from outbound lines that won’t receive a return call, and don’t care about the law because they are abroad or judgment-proof.
Note how NCLC throws in the reference to “unwanted” calls as if that is a legal problem. There is no law against “unwanted” calls. The TCPA only applies to unwanted calls to a cellphone where either the consumer did not opt-in or later opted-out. The reality is that many people don’t like to talk to creditors, even if they agreed to do so previously. The consumers often do not tell the creditor that they opt-out. The creditor wants to talk to the consumer to try to get payment or restructure the debt. If the person does not answer, then the creditor needs to keep calling at different times to try to find a time the consumer deems convenient to (finally) talk.
As for the reference to “abusive” calls: what does that mean outside the context of the TCPA? Is this an attempt to hijack the “Abusive” prong of UDAAP with no explanation of how these calls are abusive? Or is it just a throwaway term to get laypeople riled up?
How were the calls “abusive”?
If this is truly going to be a law textbook, one would hope there is more clarity with both the legal import of certain words and the relationship between so-called evidence (e.g. Youmail data) and the actual prongs of a legal violation. And one would hope to hear from more voices than just NCLC.
One would also hope the textbook addresses the most practical solution: that phone companies stop allowing spoofed calls and have a database of when telephone numbers change. Otherwise innocent people and companies will continue to have people like Ms. Stoops trying to take advantage of companies trying to reach their legitimate customers.
Re the earlier comments: In 2015, the FCC issued an interpretation of the TCPA permitting callers to call reassigned numbers once without running afoul of the TCPA. The DC Circuit struck down that provision in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). The FCC is now reported to be working on a database of reassigned numbers to enable companies to avoid calling reassigned numbers.
The casebook draft includes materials about overseas callers and spam callers. It also includes this testimony by Margot Freeman Saunders, Senior Counsel, National Consumer Law Center, before the Senate Committee on Commerce, Science & Transportation on April 18, 2018:
The problem of abusive, unwanted robocalls is not limited to scam calls. Scam calls—calls that are selling products or services they do not intend to provide, or that are pretexts for identity theft–are only one small part of the invasive robocall problem in the United States. We know who is making robocalls because call-blocking technologies track the identity of callers. The Robocall Index created by one call-blocking app provider, YouMail, identifies the biggest robocallers every month. The biggest robocallers are not scammers; scammers actually account for only a small fraction of the robocalls to consumers in the United States. In March of 2018, only two scam callers . . . made the list of the top 20 sources of robocalls. Banks, credit card companies, retailers, and debt collectors, all of whom were collecting debts according to the robocall blocker, took 17 of the top 20 spots.
The idea about consumers being victimized twice is interesting and I want to use it in the casebook so thanks for that.
A few thoughts re: Ms Stoops-like person:
a. Normal people don’t have 20+ phone numbers.
b. You are essentially suggesting she engaged in a form of legitimate “entrapment.” Should private citizens be able to do that to solicit crimes/violations of law? If normal citizens want to represent the broader public, there is a mechanism to do that: the Class Action. However Ms. Stoops was far from typical for her class: buying up scores of churned out prepaid phone numbers from around the country.
c. TCPA has a huge problem: the entity dialing a number that was switched ownership (when customer got a new phone # and didn’t tell creditor) has no idea that it is not dialing its customer. So there is no mens rea of a law violation by dialer – and no way (regardless of how much caution is applied) that the wrong dial can be prevented.
Who knows that an improper # is being called by a creditor: the recipient of the call and the phone company who knows identity of its subscriber. But who is held responsible: the only entity not told of the phone # change: the creditor.
The law should place the burden on the entity who can control the risk – here the risk is created by the borrower and phone company – both of whom participated in changing a person’s phone # without telling the creditor.
How is it a “sting” to sue lots of companies by assuming the identity of consumers who may legitimately owe money to those companies and who opted in to be dialed on their cellphone?
This is not much different than me borrowing your cellphone and answering when your bank calls and then I sue the bank because it was me, rather than you, who answered the phone. Under the TCPA, the bank has now committed a violation of the law. That is what Ms. Stoops was trying to exploit.
Legitimate companies stop dialing if they are told that a phone # has changed. The vast number of robocalls these days are from entities that are completely unaccountable con artists who spoof phone #s and sometimes originate calls from overseas. Phone companies need to verify identity of dialers.
Side anecdote: At a former company I interacted with actual Ms. Stoops. We had recordings of her masquerading as one of our customers by lying about her own identity, which prevented our ability to find out that our customer’s phone # had been changed and that it had been subsequently purchased by Ms. Stoops.
The robocalls people are complaining about are rarely the defendants in TCPA class actions. The defendants are deep pockets who are probably following the law, but settle for less than a penny on the dollar because they don’t trust the legal system to be accurate 99% of the time, So essentially consumers are victimized twice, once by robocalls (usually by offshore entities beyond the reach of the law), and again for higher prices to pay for the lawyers to litigate and settle bogus TCPA suits. The solution has to be a technological one, because the TCPA is only making things worse overall.
And I say that as someone who was a lead plaintiff in a legitimate TCPA suit against a real robocaller.