Having a plaintiff's TCPA lawyer is worth it to avoid mistakes like this - unless you don't like your cousin

This blog has a running theme for Telephone Consumer Act Plaintiff's - play defensive ball because TCPA defendants are quite willing to play dirty and an ounce of prevention is worth a pound of cure. Even though the TCPA was written with the intent to have ordinary people take telemarketers to court, most courts don't give pro se telemarketing plaintiffs much extra leeway or understanding and so this blog highlights news stories or cases that might be food for thought. The following are a mix of facts and allegations. What is actually true in this lawsuit isn't that important for this discussion.

Take case Shammam v. American Honda Finance Corporation. A guy named Barka purchased a car and financed it through Honda. The credit application asked for Barka's phone number but Barka gave his cousin Shammam's phone number as his own.

SHAMMAM v American Honda Finance.pdf

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Barka defaulted and Honda started robocalling what they thought was Barka's phone number but was actually Shammam's. Shammam sued Honda under the TCPA for unwanted telephone calls.

Honda decided to come back at Shammam with a counterclaim for "conspiracy to defraud" under the theory that Barka's buying the car and using Shammam's phone number was a premeditated fraud by the both of them. This court, rightly in my view, denied the counterclaim. The court noted that

Under California law, “[t]he elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.

and the elements of fraud must each be plead with particularly. A defendant must allege the “who, what, when, where, and how of the misconduct charged." This judge let Shammam off because Honda failed to allege any details regarding “when, where, and how” the conspiracy occurred. A different judge could easily have let Honda counterclaim Shammam with the same allegations so other parties should not assume this outcome was a certainty.

The court let Honda come at Barka with a third party claim for breach of contract, intentional misrepresentation, negligent misrepresentation, and equitable indemnity all stemming from writing down Shammam's phone number as his own.

I don't know Barka and Shammam but it is pretty unlikely Barka bought a car and stopped paying for it to set up a TCPA lawsuit. And Shammam alleges in his complaint that On multiple occasions, Plaintiff picked up the call and was transferred to a live representative, at which point Plaintiff requested Defendant’s representative stop calling him. This is playing a little defensive ball and it might (it should) win at the end of the day but how the calls got started opened the door to Honda trying to leverage Barka against Shammam.

Why is the third party claim a travesty of justice and why should Shammam's DNC requests win at the end of the day? Because consent can be revoked at any time using any reasonable means and to the extent Honda thought they had consent to call, Shammam ended it. Think of it this way, what if Barka used his own phone number on the credit application, defaulted, got robocalled, revoked consent, got more calls, and sued? Would the court entertain a counterclaim that purchasing the car was a ruse from the start? If not, it should not matter whose number was written down, the called party revoked consent and Honda continued calling.

But that isn't how it worked and until someone takes this issue to the ninth circuit judges are going to continue letting defendants extract revenge on TCPA plaintiffs because judges generally don't like TCPA plaintiffs. I have seen this exact scenario play out in Washington State TCPA cases. A good attorney can help prevent getting into this situation, and help you get out.

Are telemarketers harassing you in Washington, Oregon, or Montana? We can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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