I just participated in Six Figure TCPA settlement!

I had the privilege to be in a consulting role in a six figure TCPA settlement that went down in the last few days and I thought the overall situation had a lessons useful to other recipients of unwanted telemarketing phone calls.

Jane received a number of calls where the callers sounded like they were located in India or Pakistan. As usual, the callers typically identified themselves with fake business names, looked to qualify Jane by asking her some basic health and financial questions, and their goal was to transfer the consumer to the ACME company to be sold products and services.

The situation had an interesting twist - Jane's number was already on ACME's do not call list, so the Telemarketer was unable to transfer the call to ACME, but refused to stop calling even though Jane repeatedly asked the Telemarketer to stop calling.

I've covered in the Sticking the Landing article 1 and article 2 that to make the Seller have liability for the actions of the Telemarketer, they need to do at least one of three things. Either have authorized the Telemarketer to make the calls, have given the Telemarketer the apparent authority to make the calls, or they need to ratify the actions of the Telemarketer after the calls. This is basic agency law, where the principal is liable for the actions of the agent. A key reminder in agency law is that the agent can't merely profess to be agent of the principal to prove the relationship, the principal must do or say something to indicate the agent represents him in some relevant capacity.

Jane didn't know if the Telemarketer had the actual or apparent authority to call her on behalf of ACME, so she wrote ACME to tell them the situation. The letter covered the salient points - a Telemarketer was calling her phone number (she gave it to ACME in her letter) promoting ACME's products, Jane didn't want the calls, Jane had repeatedly told the Telemarketer to stop calling, and the Telemarketer kept calling to promote ACME's products.

In fact, Jane sent more than one letter, and the calls didn't stop. This put ACME on the hook for the calls. Think of it this way. Suppose you hire a lawn service to mow your lawn, and each time they do, they steal a few apples from your neighbors tree.

The first time they do this, you arguably are not responsible. After all, you hired them to mow your yard, not steal your neighbors apples. But if your neighbor tells you what your yard workers are doing, and you keep hiring them, and they keep stealing, eventually the Court will conclude that you are ratifying their thefts because you keep bringing them over even though you know what they are doing.

You can't keep choosing to bring someone over who you know is damaging your neighbor again and again and then tell the court that its not your problem. ACME put themselves directly in this position by continuing to work with someone they knew was damaging others. ACME received Jane's complaints and just tossed them in the trash. That is decision that cost them over six figures.

What are the lessons for folks in Jane's and ACME's positions?

If you are in Jane's position and you are getting unwanted calls, document, document, document! Jane recorded the calls and she called back the calling numbers to see a pattern going back to one Telemarketer. She used an investigation phone to identify ACME. Every so often she told the Telemarketer's phone agents that they were calling an emergency room number and if they wanted to talk to her, they would have to call her cell. And she gave them her investigation phone number as her only phone number.

They did, that number wasn't on ACME's do-not-call list, and the Telemarketer transferred Jane to ACME where she was able to positively identify ACME. That in turn enabled Jane to write ACME with about the unwanted calls. She waited a few weeks for the calls to stop, and when they didn't, she followed up with more letters a few more times. After many weeks of the calls going unabated, she pursued damages.

ACME's initial response was to tell Jane to buzz off - they didn't make the calls, they didn't hire anyone to make the calls for ACME, and Jane's complaints were meritless. When that didn't work, they made a lowball initial offer.

Jane eventually accepted a settlement offer for less than the maximum statutory damages, but for over 4x ACME's initial offer, and for the number she gave ACME at the onset of confronting them. To make this happen I recommended to Jane that she not broach the idea of settlement with ACME, let them take the initiative if they wanted to throw in the towel. I further recommended she not think about the money or need the money or want the money. Know what she was worth and be willing take it all the way to trial until and unless they made her whole. So while they dangled some money at Jane, then more, then more, it didn't work and eventually they gave up on this strategy.

If you are in ACME's position, and you get a complaint, I recommend you take the complaint seriously. ACME didn't, and it cost them significantly later. ACME didn't even reach out to Jane after receiving her first complaint. Had they done so immediately, interviewed her to identify who was calling her on ACME's behalf, and immediately fired the Telemarketer, they might well have avoided ratifying the Telemarketer's actions.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice 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.