More TCPA defensive ball - avoiding getting entrapped in a counterclaim while suing for illegal telemarketing calls

I discussed in this post what is driving many of the unwanted telemarketing phone calls, but one source I left out is just the creativity of fraudsters. Many websites pay affiliate marketers for driving traffic to a website that results in "someone" signing up, giving over their phone number, and asking for telemarketing calls. It's called an opt-in to use telemarketing lingo.

Telemarketers are paid to believe that millions of ordinary people go to dumb looking and scam smelling websites and happily ask for calls, but the reality is most of these opt-ins are from the affiliate marketers. Some are done by computer program and others are done by armies of people in the third world so as to fool CAPCHA protections.

Affiliate marketers use a mix or real names and phone numbers and completely fake names. Then you, John Doe, get a call from someone from the identity of the month club asking for a Jason Bourne.

Some TCPA plaintiff's, when they get a call asking for Jason Bourne, just go with it to see who's calling. And who can blame them. I am curious too when I get a call asking for a clearly wrong name. But hostile courts will jump on this to support a counterclaim for fraud. See Hastings v. Callcore, 2024 WL 943952 (E.D. Ark. March 5, 2024).

Hastings v Assure Media.pdf

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Defendant Assure claims that someone (of course they accuse Hastings) went on a website and used the fake name Marvin Taeese to ask for calls. What is their evidence? It appears their sole evidence is that Hastings allegedly didn't repudiate "Marvin Taeese" when the caller used this name.

"Assure alleges that Hastings also verbally consented to being contacted by telemarketing agents regarding health insurance quotes on March 8, 2021 at 9:24 EST, again giving the false name and his correct phone number . . .Assure alleges that a live CallCore agent called Hastings on March 27, 2021 on behalf of Smartmatch. Throughout the call, Hastings answered to the name “Marvin” without correcting the calling agent or advising them that he was not interested in receiving health insurance quotes."

I have no information as to who (if anyone) went on this website and asked for calls, but suppose Hastings didn't and had nothing to do with it. He just got calls asking for "Marvin Taeese" and went with it to identify the caller.

Now he is in a counterclaim because he got unwanted calls and worked at figuring out who did it. First, this highlights the bias in the system. The only information Assure will have as to who opted in will be an IP address, and that IP address is most likely a dead end.

Supposedly Assure will have the burden of proving Hastings asked for the calls and most people would say they can't prove it if the IP address is a dead end. But a hostile court may well take his failure to repudiate the fake name as evidence of the opt in!

Better defensive ball is not to answer to fake names, or be aware that answering to a fake name is a trade off. Not every telemarketer may care if they call with "Hello is Marvin there?" and you answer with "may I ask whose calling" or possibly even "I'm sorry I don't know a Marvin can I help you with something?" You may at least try a "wrong" answer to see if they will hang up before you give them the "right answer". Telemarketers have to work hard to get anyone on the phone and in my experience some may take a shot at selling you anyway.

And if you are good on the phone you might find an even smoother way to distract them from the fact that you are not Marvin.

This came up again in Gerard Jackson v Direct Building Supplies LLC (DBS). DBS alleged that they placed calls to Jackson because of a website opt in using his phone number and address, the name "Barry Johnson" and email address "bluebrrd@gmail.com".

Dkt 39 - Jackson v Direct Building Supplies LLC.pdf

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"Over the course of this call, Jackson responded to “Barry” and “Mr. Johnson” . . . another seemingly fake email address of “bluebird3224@gmail.com . . . Plaintiff . . . “did not rebut” the representative’s use of the name Barry.”

Perhaps even if Jackson told the caller that he wasn't Berry/Mr. Johnson, the court's ruling would have been the same, but this was about the only thing the court had to hang it's hat on (other than Jackson's prior TCPA lawsuits).

I recommend TCPA plaintiffs always play defensive ball. I know the fear is that you won't learn who is calling you, and that does happen with telemarketers, but you may find they can't resist trying to sell you anyway and it might avoid a problem in court later. A little defensive ball might keep you out of a counterclaim while pursuing an illegal telemarketing lawsuit.

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.

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