Playing a little defensive ball as a TCPA plaintiff

First, this post is not knocking anyone. Most telemarketing recipients are not experts and telemarketing laws are generally intended to be enforced by ordinary citizens. Hopefully we all learn from the mistakes of others.

It is no surprise telemarketers hate TCPA plaintiffs. If you read telemarketing propaganda, they believe they have a god given right to ring your phone and your lawsuit is getting in the way of the natural order of things.

What might be a surprise to some is some courts (typically federal) don't like TCPA plaintiffs either. Part of it might be pro-se plaintiffs. Part of it might be a judge not liking to spend time on 'low dollar' cases. Part of it certainly can be ideological - lots of judges don't want to award money for 'just a phone call'.

Judges have immense power with loose oversight, so it is important to play a little defensive ball in building your telemarketing case as three lawsuits from the same plaintiff will show.

The first lawsuit is Johansen v. Nat'l Gas & Elec. LLC, Case No. 2:17-cv-587, (S.D. Ohio Dec. 20, 2017). The plaintiff in the case alleged that NG&E called him on June 13, 14, and 15, 2017, and sued for § 227(c) violations.

Mistake #1:

"Johansen disputes NG&E's contention that he was the one who initiated the contact — Johansen says NG&E called him first — but he concedes that when the initial phone call got disconnected, he called NG&E back in order to complete the enrollment process." Johansen.

I recommend using an investigation phone to call suspicious phone numbers back to keep your real phone number 'clean'. Had this plaintiff done this, it would have helped him. But this wasn't the mistake I'm pointing to - signing up for service on or immediately after the first phone call. Generally a 47 U.S. Code § 227(c) violation takes two calls in a 12-month period.

"A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State" § 227(c).

Better defensive ball as a TCPA plaintiff is having more than two calls in a 12-month period. Had this plaintiff received this call, called back with an investigative phone just enough to establish it was from NG&E (and not purchased or signed up for anything as the result of a first call), and waited for two more NG&E calls before suing, this judge would have come off as unreasonable if he ruled against the plaintiff.

"Even if NG&E initiated the first call on June 13, an individual does not have a cause of action until he has received "more than one telephone call within any 12-month period" from the same entity." Johansen.

The case was dismissed, and while this plaintiff was represented by an attorney, the attorney didn't seem to know better then to bring this to court, and the plaintiff didn't learn to play better defensive ball after the outcome of this case.

A few years later the plaintiff was then involved in another lawsuit Johansen v BlueGreen Vacations Unlimited Inc. As an aside, when a court opinion lists off the litigation history of the plaintiff at the introduction to a ruling, the court is signaling its bias against the plaintiff.

"Plaintiff appears to have an extensive history with filing lawsuits alleging violations of the TCPA . . . estimating that, prior to 2020, Plaintiff had filed sixty TCPA lawsuits and estimating that, since 2014, Plaintiff has made on average $60,000 per year from TCPA lawsuits"

Johansen v Bluegreen Vacations Unlimited.pdf

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In this complaint, the plaintiff alleged to have received an (initial) call (from the defendant) "and said, “hello”; however, Plaintiff did not hear an audible response, and the line disconnected after approximately thirty seconds." Then the defendant made a second call to the plaintiff. According to case #1, this plaintiff is good. Two calls in a 12-month period.

"On May 27, 2020, Plaintiff received a second telemarking call, initiated on behalf of Defendant. Plaintiff claims that he listened to and engaged with the telemarketing representative, intending to conclusively identify the entity responsible for illegally contacting him. During the May 27, 2020 call, the representative began the conversation by telling Plaintiff that she was calling on behalf of Defendant about a vacation package that Plaintiff had previously purchased in 2010. Plaintiff continued the conversation and proceeded to pose as Defendant’s customer."

The court goes on to say that during this 30 minute phone call the plaintiff requested additional information and knowingly verified false contact information. The plaintiff received seven more calls after this call. Collectively, the court won't like any of this.

"The record clearly demonstrates the deceptive and dishonest tactics employed by Plaintiff to establish his claim."

This court may - or may not - be living in reality. Many telemarketers will not identify themselves outside of "deceptive and dishonest tactics employed by Plaintiff to establish his claim". With most telemarketers, if you are honest with them "I am not interested in your services and I am am trying to establish who you are so I can sue you" they are going to hang up on you. Duh!

Mistake #2. The plaintiff could have simply hung up on call #2, and investigated at say call #3, or #4, or #10. If this plaintiff had received more calls before doing the final investigative work to prove the identity of the caller, it would have forced the judge into a much smaller box. It is counterintuitive but since you can't be sure your judge won't be biased against you, the safest way to protect yourself is to come to court with a lot of unsolicited calls. This resulting in more damages for you is their problem, they didn't want you to come to court with the minimum possible case so they can deal with the fact you did what they expressed they wanted by their actions.

Mistake #3. I believe the smartest thing a plaintiff can do after an investigation that involved "deceptive and dishonest tactics employed by Plaintiff to establish his claim" is to follow up with at minimum a do-not-call request, and even better, telling the caller that you are on the do-not-call registry, you have gotten a bunch of unwanted calls, you talked to them just now to investigate the source of the calls, and you want the calls to stop.

It is much harder for a judge or opposing lawyer to spin that against you, and if they call again, well they were on full notice that you didn't want the calls. Defense attorneys may try to argue that not proactively trying to make the calls stop is consent to be called. In general this is a losing argument. See Simpson v. The J.G. Wentworth Co. where DMS argued that the plaintiff had an opportunity to press '1' but didn't:

"[it] argues that Simpson was immediately given the option to end the initial call by “press[ing] 1” but instead chose to continue engaging for roughly 15 minutes . . . the transcripts here are, at worst, consistent with Simpson's version of events, related under penalty of perjury in his affidavit, that he stayed on the line and continued engaging with the Defendants' representatives to figure out who was calling (and thus who to sue)"

A couple years after this lawsuit, the plaintiff came back in Johansen v. Efinancial LLC, 2:20-cv-01351-DGE, (W.D. Wash. Jan. 18, 2022).

“Plaintiff's claim consists of two telephone calls Efinanical made to Plaintiff in April 2020, only one of which, the call made on April 7, 2020, could potentially subject Efinancial to liability under the TCPA.”

Supposedly "Efinancial received a request through its website for an insurance quote purportedly sent by Plaintiff."

"After receiving this request, Efinancial placed two telephone calls to Plaintiff on April 6, 2020 and April 7, 2020. Plaintiff did not answer when Efinancial called him on April 6th. On April 7th, Plaintiff answered and spoke to two Efinancial representatives."

The plaintiff spoke with Efinancial on the 7th and in this call he told them he didn't consent to the call. Once again the plaintiff seeming has his two calls in a 12-month period of time, but one will slip away because he didn't play defensive ball.

"A Reasonable Jury Would Find The Call Was Consented To and That Efinancial Had a Basis to Call Plaintiff."

Efinancial claimed it received the plaintiff's name and telephone number from a submission on its website. And once again the court used the plaintiff's investigation against him:

"it is undisputed that Plaintiff actively provided information necessary to obtain an insurance quote. An Efinancial representative initiated the call, immediately identified himself, stated that the call was in response to a request Plaintiff submitted, and began confirming with Plaintiff the information Efinancial had received."

Had the plaintiff waited until call #3 or #4 or #10 to investigate, the court would not have been able to discount all those calls so easily. But since there were only two, and two was the minimum, the court only needed to discount one of them to get where it wanted to go.

This opinion goes downhill from there. The lesson to be learned from this series of cases is, don't be in a hurry. Collect calls, and investigate more as you have more calls. If this plaintiff had collected 10-20 calls before really engaging the caller, got the identity of who they were calling for, then told the calling agent that he had received a bunch of unwanted calls, and he was investigating who they were calling for and please make the calls stop, and then brought the matter to court, the courts would have had a much harder time exercising any bias against telemarketing laws on the plaintiff.

Yes, you probably will bring fewer cases to court, but the cases you do bring will be stronger and worth more in damages.

As with everything there are nuances and details, and consulting with NW Debt resolution about unwanted calls you are receiving is a first step towards building your case, making them stop, and collecting damages. Give us a call at 206-800-6000 or email peter@nwdebtresolution.com or nathen@nwdebtresolution.com (Peter's law clerk). A consumer lawyer can help you know if you have a good case against telemarketers.

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!

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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