Telemarketer claims YOU opted in - and provides a "video"
- Peter Schneider
- Mar 4
- 7 min read
Updated: Jul 22
You got unwanted telephone calls, you figured out who is behind it and sent a demand letter or even a telephone consumer protection act summons and complaint.
They respond with some sort of "Certificate of Authenticity for Web Leads" / Trusted Form / Jornaya with a bunch of details about some request for calls, and even a "video", and they claim YOU did it. I've seen this a few times and here is what I do to analyze the situation. Usually these lead authenticity certificates have some information.
You know you didn't ask for the calls and the consent is faked. You are looking for the quick ways to prove it was faked. However, don't assume the "Certificate of Authenticity" / Trusted Form / Jornaya itself is faked. It is probably real, as real as you can have with an industry that uses rooms full of third world employees creating fake TCPA consents, and sophisticated computer programs acting like people to create fake TCPA consents.
IP address
Usually it will contain the IP address that supposedly consented to the calls. One tool you can use to research the IP address is https://www.iplocation.net/ip-lookup. You can't be certain of the resulting information [it is usually accurate to the state level] but it is a start - who is the internet service provider for that IP address? Do you have any connection to them? If no, that is a quickly compelling argument. Does the IP address go back to a Digital Ocean server, Cloudflare, or some other computer server service you have no connection to? These are typical IP addresses used to create fake opt ins. However keep in mind that telemarketers have access to residential exit nodes so they can easily make it look like someone at a house created the opt in.
What is the location of the IP address? Are you near there? Even though the location information isn't very reliable, people act like they are, so a location far from you seems compelling. But don't be shocked if the IP address appears to be from a large city near you (or your large city). Scammers are very sophisticated with access to a large number of IP addresses. If they know your geographical information they can and will pick an IP address that appears to be near you. What they don't know is your internet service provider so they usually won't use yours and that is a chink in their armor.
Is the IP address associated with a Virtual Private Network? Check here https://ip.teoh.io/vpn-detection If it is from a VPN and you don't use VPNs that is a compelling reason it wasn't you.
Date and time
Do you have an alibi for the date and time of the fake opt in? Even if you don't have a complete alibi, can you show where you were at the date and time? It limits the "but you could have used xyz to do it" argument.
Device information
These Certificate of Authenticity reports often report the operating system, web browser and screen resolution of the device creating the fake opt in. The more the device isn't you, the better. Or if you can show you were at your son's ball game and the Certificate of Authenticity says a windows 10 box was used, do they think you hustled it up to the bleachers? In discovery push to get the screen resolution of the device. Many computers use Windows 10, fewer use Windows 10 and a screen resolution of 1440 x 720.
The video
Quite often the Certificate of Authenticity will have a link to a video supposedly of the fake TCPA consent. When watching look for the speed by which the characters get entered. Machine gun speed means a computer program. Slow typing a human. But look for the extra information, is there an email address not used by you? Is your name spelled correctly? Look for everything that is wrong.
A key sign of a fake opt in
Real opt ins (aka a Lead) are expensive in the open market. Like $40-$100 expensive for a request for calls on a basic services like roof repair or pest control, and hundreds or thousands for class action representatives in mass tort claims.
If you are getting robocalls or impersonal mass calls from Indian telemarketers based on this opt in, it is a sign that the telemarketer paid pennies for it because they all knew it was fake. Someone spending $50 to call you legally isn't going to waste that expense with a robocall or Indian telemarketer you can't understand. So just knowing who called you and how really tells you if the opt in they show you is a cheap fake or not.
Your charm offensive in court
If your situation goes to court, don't expect the defendant to issue a single subpoena to prove that the IP address is connected to you. Don't expect the defendant to issued a single subpoena to prove that you visited the opt in website around or before the alleged opt in.
They know you didn't do it and they don't want more evidence you didn't do it. Their strategy will be to just keep accusing you of "could have done it" because some biased judges believe "could have done it" is just as good as evidence you did ask for the calls. How do you know the judge is based? Take a judge receptive to a "could have done it" defense argument. Then try proving your case with "I have no actual evidence but the defendant could have made the calls". A fair judge is biased the same with all parties. A bad judge is just biased against you.
You need to subpoena the internet service provider to see who is behind the IP address. Court is theatre. Offer all of your devices to a third party forensic company for analysis (if the defendant pays). Encourage the defense to subpoena your web browsing history for the month prior to the opt in.
Make sure the judge knows you are offering your devices and browser history. Make the defendant's "could have done it" theory look like what it is - litigating the case through innuendo.
Be mindful of your investigation
The telemarketer and the biased judge might decide it is your investigation of who is calling you that is most illuminative of who asked for the calls or if the telemarketer had consent for the calls. In Mantha v. Quotewizard.Com, LLC, No. 19-12235-LTS, 2024 U.S. Dist. LEXIS 152987 (D. Mass.), Mr. Mantha received eight unwanted text messages, after which he responded "How do I get a quote?" and "further exchanges ensued. QuoteWizard tried to use that against Mr. Mantha, but keeping his powder dry for eight unwanted text messages made that difficult:
QuoteWizard also argues that “Mantha ultimately responded and solicited further contact.” Doc. No. 264 at 33. That Mantha responded after the eighth message in a series of unsolicited messages does not bolster QuoteWizard’s good faith defense.
The Upshot
Few telemarketers these days are calling without a fake consent to trot out if they are sued. These fake opt-ins are cheap and the resulting calls are impersonal. They create and sell this fake TCPA consents just to protect themselves (so they think) from a lawsuit when they are caught.
I've recently posted several articles about TCPA plaintiffs who came to court with "I know they did it" allegations that didn't stave off a motion for summary judgment here and here. The burden of proof of consent is on the defendant in telemarketing. “Express consent is not an element of a plaintiff's prima facie case but is an affirmative defense for which the defendant bears the burden of proof.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017)
By subpoenaing the owner of the IP address and finding nothing there, you likely want to head in the direction of summary judgment on the issue of consent.
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, (1986)
If you receive a fake consent from the telemarketer, don't freak out. Be concerned and take steps to investigate it but don't be overly concerned. Make sure the details don't match you of course, but being a TCPA plaintiff is increasingly meaning you have to fight off a fake consent form. My law clerk has been countersued so many times by telemarketers that he expects it and isn't bothered by it. He doesn't want them, but if your going to get one, it can be used to make your claim more valuable.
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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