Your privacy is not worth a penny to telemarketer Joe Delfgauw

This is another article in my series on how telemarketing really works.

Most unwanted phone calls start from a supposed website opt in. Telemarketers always claim the owner of the phone number went to some garbage website that doesn't appear in Google's search results and entered there phone number with a request for calls.

Just about all telemarketer lawsuits could be avoided if the telemarketer texted that phone number with a simple "was it you?". You know, just like your bank and every other responsible entity in the universe texts you a code to verify the person on the web is the person in possession of the phone. This is most commonly known as two factor authentication, but in telemarketing speak this is known as a double opt in.

Who would refuse to use two factor authentication or double opt ins? Telemarketers who know that a lot of their opt ins are fake would not want to use it as it would screen out all the bogus sign ups. But a telemarketer can't say that, they need to use some other excuse. Telemarketer Joe Delfgauw says he doesn't use two factor authentication / double opt in because it would cost a penny. This is taken from deposition testimony between Mr. Delfgauw and my law clerk Nathen Barton.

A. . . . the only other way to really do it [verify the person in possession of the phone is the person who opted in] is to send a text message saying Hey, Mr. Barton, did you intend to opt in? Would you like to subscribe to text messages? That's what that means.

Q. And you could do that?

A. Sure.

Q. And you choose not to why?

A. Because it's a waste of money because 99.9999999 percent of the people -- it costs money to send a text message so if you actually had to do that, it would cost an additional 10- to $20,000 a month to send that when most people are honest and they actually just want the text messages and everyone who doesn't [the people fraudulently opted in] requests out.

Q. How much --

A. -- rated 1 and a half percent.

Q. How much does it cost you to send one text message?

A. Depending on the carrier, it could be anywhere from half a penny to a penny.

Q. Okay. So you're saving a penny every time you don't ask if someone wants your phone calls?

A. Yep, times 40,000 a day. $400 a day.

Q. You're saving $400 a day?

A. At least. And the other thing is it's not required. The only time it's required is if someone opts in on a keyboard, like if they join by a keyboard. Then you actually respond saying yes, you verify, answer yes. And other companies have different policies. There's no universal policy. We choose not to because, again, I'd rather -- it's $150,000 a year just to actually say yes, I want to receive the text messages. So there's no real reason [You will see from another article is that what Joe Delfgauw means when he says "not reason" is because he expects the people who are fraudulently opted in to reply stop.].

Q. And you've never done double opt-ins?

A. Sure, but we got rid of it because it was a waste of money.

Q. When did you get rid of it?

A. I don't remember.

Q. Okay. And when I asked you, for each opt-in that you claim I did and you suffered injury, you know, "Please describe every method that was used to prevent the signup from being fraudulent," you said, "Methods to prevent unscrupulous individuals from misusing and profiting from federal law have not yet proven to discourage the dishonest." You don't think that double opt-ins would discourage the dishonest?

A. No, because what if you said yes, or what if you said no, what does it matter? [If the plaintiff said NO, wouldn't that prevent the calls that would drive the lawsuits? If the plaintiff said YES, wouldn't that be black and white proof that the plaintiff requested the calls?] What if you didn't answer? [Wouldn't no answer be the same as NO?] It's just an extra cost and, again, you have to go by the law of averages. 50 million text messages a month with two or three lawsuits a year, obviously, most people are genuine.

Q. So it's just a -- just a numbers game for you, which way is cheapest?

A. Not cheapest. It's which way -- we follow the law and we make a business decision based on the best way to do it. We actually have attorneys now. We're countersuing everybody if anyone actually brings up a lawsuit and because we know we have their opt-in. [Joe Delfgauw doesn't do two factor authentication / double opt ins, but he knows we have their opt-in]

Q. So you don't think that if I had replied yes, that that would have benefited you in this lawsuit?

A. Mr. Barton, you answered yes on the phone, you were Ivette Jimenez, and that didn't stop it, so no, there was nothing that was going to stop us. You're going for blood and everybody -- there's nothing -- I have my opinions.

Q. You don't think a double opt-in would have helped you in this lawsuit?

A. Zero [If the plaintiff said NO, wouldn't that prevent the calls that would drive the lawsuits? If the plaintiff said YES, wouldn't that be black and white proof that the plaintiff requested the calls?], because you would have just -- because you'll use the whole thing then, when we ask you, you won't even press stop, right? The statute doesn't require it. The statute doesn't require you to reply to the two-factor authentication. [Joe Delfgauw's ultimate answer is the law doesn't require it]

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Q. Why can't you use a double opt-in that prevents those unwanted calls and unwanted text messages.

A. We can.

Q. Okay. You can. So nothing is preventing you?

A. Nothing is preventing us. We just choose not to because we do -- we do 99 of the 100 things. That is a cost of $150,000. If I took every single one of my lawsuits, it would be significantly less than $150,000, so why would I want to spend $150,000 more on something that's costing $20,000 when 99.9999999 percent of the people will just say "stop the calls." [This is Joe Delfgauw's reality. If he can keep his litigation costs below $150,000 a year, he figures that's cheaper than just the cost of the penny alone not to mention all the money he makes calling and texting the fake opt ins]

Q. Okay. But when you say $150,000, really, it's a penny a person?

A. 40,000 a day is $400 a day, times that by 365 days. And that's why I'm good at math, Mr. Barton.

Got a Case Like This?

If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.

Are telemarketers bothering you in Washington, Oregon, or Montana?

I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.

📞 Call: 206-800-6000 / 971-800-6000

📧 Email: peter@nwdebtresolution.com

Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.

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