March 2016 - Call Compliance News
The FCC has fined Florida companies and their owners more than $3.12 million for unauthorized telecom charges (cramming). FCC v. Telseven, LLC, et al. Patrick Hines is the sole owner of Telseven.
The FCC has also issued a notice of “apparent liability” for forfeiture of almost $30 million against another telephone company. FCC v. OneLink Communications, Inc. The notice alleges fraudulent practices targeting consumers with Hispanic surnames.
A data broker has settled charges brought by the FTC that it knowingly provided sensitive personal financial information to companies which then used the information to commit fraud. FTC v. LeapLab, et al.
A payment processor settled charges of “accomplice liability” with regard to an allegedly deceptive home-based business company. FTC v. Capital Payments, LLC. Capital Payments provided payment services to The Tax Club and allegedly ignored red flags about The Tax Club, including high rates of chargebacks.
Comment: The “accomplice liability” standard in the TSR means that businesses which know, have reason to know, or consciously avoid knowing of wrongdoing by their business partners can be held liable for that wrongdoing.
The FTC has filed suit against two companies which allegedly violated the FTC Act and the TSR by making false representations to consumers regarding debt relief programs. The complaint alleges the defendants offered to lower consumers’ mortgage rate and pay full refunds if they could not obtain reductions. The FTC v. Good E Business, LLC, et al. A federal judge entered a temporary restraining order against the defendants in response to this suit soon after filing.
Comment: The FTC only seeks temporary restraining orders in cases of alleged financial fraud but usually is less aggressive. I refer to seeking a TRO in situations like this as “kicking the doors down.”
An article in the Wall Street Journal summarized TCPA class actions and concluded the average award for individual members of the class was $4.12 while the average attorney’s fee award was $2.4 million.
The author dubbed the TCPA “Total Cash for Plaintiff’s Attorney.”
A California court has stayed (that is, delayed ruling on) a TCPA case against Discover Financial Services pending the Supreme Court’s Ruling in Spokeo, Inc. v. Robins. Chattanond v. Discover Financial Services, LLC. The plaintiff alleges that she was contacted without her consent on her cell phone using an automatic telephone dialing system.
Comment: If the Supreme Court rules in favor of Spokeo, TCPA plaintiffs would have to show actual damages to have standing to bring claims of alleged violation of the law.
A bill has been introduced to the California Assembly (AB 2907) which would remove the publicly traded company exemption from state telemarketing law if the publicly traded company is not an exchange certified by the state Commissioner of Business Oversight.
A bill has been proposed in the Colorado Senate (SB 14) which would require that mortgage loan originators comply with business disclosures found in the TSR.
A bill has been proposed in the Delaware House (HB 270) which would allow the Delaware Department of Justice to deny registrations, revoke existing registrations, and deny renewals for telemarketers who have engaged in any false statements in application or violations of state or federal telemarketing law.
An Illinois court has approved a class action settlement based on allegedly illegal faxes sent by Metropolitan Life Insurance Corporation. Fauley v. Metro Life Insurance Company. The settlement involved a fund of more than $20 million and attorney fees of more than $7 million. Individuals who objected to the settlement argued that the attorney fees were too high and the benefits to the class too low.
An Illinois court has allowed a TCPA plaintiff to amend his complaint alleging that cruise lines placed unsolicited prerecorded telephone calls to him. Charvat v. Travel Services. The proposed third amended complaint alleges that prerecorded calls continued after commencement of the action in 2012.
A bill has been proposed in the Kentucky House (HB 413) which would require consent before an entity could sell directories of consumer cell phone numbers.
A bill has been passed in the Mississippi House which would fund the state’s telemarketing registration apparatus for another year.
Comment: Mississippi law requires that the office be funded separately each year.
The state of Missouri has announced three new suits against businesses for alleged violations of Missouri’s no-call and telemarketing laws. Koster v. Lawn Pro Turf Maintenance; e-Degree Advisors; and Courtesy Call.
Comment: Missouri is one of the more active states with regard to enforcement of its no-call law. Additionally, Missouri’s established business relationship exemption and other key terms of the law differ from the federal restrictions.
A bill has been proposed in the New York Assembly (AB 9457) which would require all calls placed through the use of an automatic dialing announcing device to transmit the caller identification information including telephone number and name of the person calling.
An Ohio court has dismissed a case brought by a well-known TCPA plaintiff against a cruise line. Reo v. Caribbean Cruise Line, Inc. The defense argued that Reo did not make separate statements of allegation of fact against each of three defendants, rather lumped all three together. The Court agreed finding that the complaint must not solely “parrot” the language of the TCPA. It must contain additional factual allegations to show the cause of action.
Comment: Reo is extremely litigious, hence some judges have tired of his allegations.
A bill has been introduced in the Pennsylvania House (HB 1920) which would eliminate calls on behalf of a charity from the definition of “telephone solicitation call” for purpose of the telemarketing statute. If passed, charitable organizations selling items would be subject to state telemarketing law. Calls soliciting charitable donations would still be exempt.
A West Virginia court has stayed (i.e. delayed) a case brought alleging illegal calls to a well-known TCPA plaintiff’s cell phone. Mey v. Gott Warranty, Inc. The defendant moved to dismiss arguing that Mey had not been injured by the calls, but the court instead delayed the case pending the Supreme Court’s ruling in Spokeo.