autodialer

Judge Thrash Trashes Robodialers' Garbage Arguments

The Honorable Thomas W. Thrash Jr. was one of the first judges to throw out the garbage arguments that the robodialing industry has been salivating to make, ever since Spokeo came out.  Recently, the United States Supreme Court issued an opinion in the highly anticipated Spokeo v. Robins, 136 S. Ct. 1540 (2016).  In an effort to strip Americans of all of their statutory rights, the defense industry threw the kitchen sink at The Supremes, but they refused to bite. The trillionaires and billionaires tried desperately to convince the Supreme Court that, although they admittedly broke federal law, individuals should not have the right to sue in federal court since these individuals had “no-injury.”

To analogize, imagine a gang of thugs running around this country’s neighborhoods breaking into cars and homes. These thugs watch your family eating dinner through windows, tap your telephone calls, commit home invasions, walk into your home at night when people are sleeping looking for things to steal, break into your automobiles, and rummage through your belongings, but when caught red-handed on video they state, "we know we broke many laws but we didn’t beat anybody up so there was no injury.”

Judge Thrash, a Harvard Law School graduate, was not tricked, and ruled when discussing the Telephone Consumer Protection Act (TCPA), the federal law prohibiting unwanted robo-calls, that, “Congress intended to create a concrete injury where the statute was violated, meaning so long as the plaintiff has been affected personally by the conduct that violates the statute, standing exists.” {Casetext LinkRogers v. Capital One Bank United States, 2016 U.S. Dist. LEXIS 73605, *4 (N.D. Ga. June 3, 2016). This line of thinking was exactly what the Spokeo court addressed when it reiterated the long standing law in this country stating, “Congress can create private rights and authorize private plaintiffs to sue based simply on the violation of those privacy rights;” and “[a] plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.” Spokeo, at 1549.

It is unlikely the debt collection industry which includes banks, debt collectors (that are so big and rich they could be banks), debt buyers (who buy millions of dollars of accounts for pennies), student loan providers, credit card companies, and huge department stores, will trick the majority of people or Courts, but you can “take it to the bank” that they will use their trillions and billions to abuse and misuse the words of Spokeo.

One banking lawyer recently actually made the incredible fishy argument, under the guise of Spokeo, that the “vast majority” of robocalls are “welcomed” and “enjoyed." You don’t need to have a Harvard law degree to smell this garbage a mile away. The reality is - unwanted robocalls are the #1 consumer complaint in America.

The Archrivals to American’s consumer and privacy rights are those that want to stop lawsuits brought by a group of people, referred to as collective or class actions. Archis Parasharami, one of the team of lawyers representing Spokeo, within a couple days of the opinion, wrote a blog gleefully boasting that Americans will now have “significant challenges in obtaining class certification.” And that my friends are what the debt collection industry and robodialers are really all about. It's about trying to stop class actions, knowing that class actions are the only real mechanism that can keep these mammoth multi-zillionaire bullies remotely in check.

Let’s go back to the thug analogy; the thugs not only don’t want to be charged for all their little crimes, they also don’t want to be charged with the conspiracy and the racketeering. Their argument is although they were caught red-handed planning and orchestrating massive crimes since everyone suffered differently, or didn’t have broken bones, then these crimes should go unpunished also. This is the argument you will see, except pitched a little more eloquently to the courts. But chances are it will not work.

Paul Bland, the Executive Director of Public Justice, and one of the foremost experts on consumer rights nailed it when he said, "[c]orporations took a shot at gutting America’s privacy laws, and they missed.”  This doesn’t mean they won’t stop shooting because that’s what they do.  If the robodialers and their ilk had their druthers, Americans would never have been able to file a class action and would have zero access to the courts. Make no mistake, the arguments backed by the defense industry are driven by greed and money and money and greed.

The garbage arguments will be piling up, and the smell will get worse, but I’m confident our federal judges, like Thrash, will continue to take out the trash.

How do you get $1500 Per Call?

The short answer is you must sue the offending company because they certainly won't just send you the money.

In order to get $1500 Per Call you must show a company is "willfully" calling using an autodialer or pre-recorded message without your consent.  If you can show these elements to the court then you have a violation of the Telephone Consumer Protection Act (TCPA) which may be worth $1500 Per Call.

The first hurdle is to prove a pre-recorded message or autodialer aka "automatic telephone dialing system" ("ATDS") was used.  If when you answer the phone and hear a pre-recorded voice or a pre-recorded message is left on your voice mail then you can check that box. Whether a company is using an autodialer is sometimes more difficult.  The vast majority of banks, debt collectors and other financial institutions use them but some simply won’t admit to it.  This may be surprising, or maybe not, but these types of companies make lots of money by breaking the law and getting away with it so they sometimes deny they use an autodialer although they admit they call or text one million (1,000,000) people a day.

A "call" is a telephone call, a text or a fax, all of which are covered by the TCPA.  

All companies must have your "express permission" to use an autodialer to call your cell phone.  Telemarketers must have your "written consent" to call your resident line. [Debt collectors basically get a free pass when calling your home line even when using an autodialer.]  "Consent" is the hottest topic of debate these days.  These mega-collectors make every ridiculous argument they can think of and claim they have consent when they really don't. Callers, per the TCPA, must have your consent to call and it must be given by you, not someone else like a family member of friend.  The Federal Communication Commission (FCC) which has the duty of implementing the TCPA, states that if you give your number to a creditor as part of an application then that counts as consent for any debt collector to call.  Numerous Courts don't agree with this position-which frankly flies in the face of logic.  The approach that would make the most sense is, if a company wants to robo-blast your phone then they should at least be required to get your consent to do so.  

To obtain a $1500 Per Call ruiling one must prove the call was made "knowing" or "willful,"  which basically means it was intentional.  This is sometimes difficult to prove for a few reasons: 1) Courts have many different opinions as to what is necessary to prove this willful conduct, 2) It's not clear if a judge or jury is the one who makes the determination whether the calls are willful, 3) Most defendants are so scared of going to trial and getting a public verdict against them that they throw a lot of money at people and get them to sign confidentiality agreements so the truth about their conduct will never become public, 4) Most people don't know they have the right to fight back and file a lawsuit for abusive robo-dialing, so it's difficult to estimate how many times they are intentionally or willfully breaking the law.  

Although its challenging to have a Jury or Judge award $1500 Per Call, I have been able to obtain 3 separate Federal Court Orders in which Florida Judges awarded my clients not only $500 per call but  increased the awards to $1500 Per Call! [If you would like to see these Orders simply email me at: Billy@TheConsumerProtectionFirm.com]

Learn more about your rights and our quest for $1500 Per Call by visiting 1500PerCall.com

$1500 Per Call, Thats a Great Law!