robocalls

Robocalls in America: EPIC VICTORY AGAINST ANGRY ROBOCALLERS

Robocalls in America: EPIC VICTORY AGAINST ANGRY ROBOCALLERS

Robocallers are pulling out all the stops to stop the Stopping Bad Robocalls Act. In a grand victory for our society that is plagued by annoying robocalls, the Stop Bad Robocalls Act (H.R. 3375) was just voted on unanimously by the full U.S. House Commerce Committee to go to the floor. This bipartisan bill will strengthen our robocall law and should pass the House unanimously and sail through the Senate.

How The Grinch Did Not Steele The TCPA

Every Who down in Fort Myers

Liked the TCPA a lot ...

But the Grinch,

Who lived north of Fort Myers,

DID NOT!

 

The Grinch hated the TCPA! The whole TCPA law.

Now, please don't ask why and please do not call. 

It could be because its so easy to harass

It could be, perhaps he just wanted a pass.

But I think that the most likely reason of all

Was because he had no "express consent" to call.

 

"They're hanging up their phones," he said with a sneer.

They're saying, "stop calling." What now? Oh dear!

Then he growled, with his Grinch keyboard drumming.

I MUST find some way to to stop the TCPA from coming.

 

Then he got an idea!

An awful idea!

THE GRINCH 

GOT A WONDERFUL, AWFUL IDEA!

 

All I need is an argument,

The Grinch looked around.

But good ones were scarce, 

there was none to be found.

Did that stop the old Grinch...?

No! The Grinch simply said,

"If I can't find a real one, I'll make one instead."

So he called on his dog Spokeo and typed up some dread

And tied it to arguments that long since were dead.

 

But, you know that old Grinch was so smart and so slick,

He thought up some words and he thought them up quick. 

"Concrete damages," a new concept you see,

"This dooms all class actions," cuts them down like a tree. 

"Defacto, that is, it must actually exist"

 "The landscape had changed, all TCPAs must be dismissed."

 

"PoohPooh to the Who's" he was grinchishly typing,

Romero and "de minimis" he was so confidently hyping.

But when Judge Steele read the words, he was not fooled by that stuff

Its called precedent he thought, I'll call the Grinch's bluff

 

And what happened then ....

Well in Floridaville they say 

That the Judge did in facto 

save the TCPA!

 

These damages are real he wrote, not fake like your sleigh

consumers have rights, you cant take them away.

I can't dismiss these cases, I'll give you no such relief

Then the Judge himself carved up the Grinch's brief!

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.

What is "Collection Harassment?"

Short answer: Anything a collector does that isn't nice

Jack Nicholson in A Few Good Men said it best, "You have to ask me nicely!" Collectors may contact you to collect but they must do it nicely.  If they do anything that is not nice then it is probably technically a violation of the law.

We have great laws in our country that protect us from any debt collection conduct that is harassing or abusive.  The good news is there is no definition for what is considered harassing.  What is “harassing" is left up to a jury.

I used the term “collection harassment” almost 20 years ago, and while nobody can prove who used the term first, the smart money is on me.  Collection harassment comes in all shapes and sizes, from falsely reporting a debt on your credit, to calling you at work, to robodialing your cell phone 22 times a day.

The most common way for collectors to harass you is using a "robodialer" aka autodialer. Banks and debt collectors have the ability to call 10 million people a day for only 1 penny using a robo-dialer!  They live to harass people and they love that they have the technology to do so.  These big banks, credit card companies, department stores and debt collectors who I refer to as "robo-bullies" for brevity’s sake are the #1 consumer complaint in America today.  It is so easy to plug a person’s number into their “robocalling campaign” and hit “blast” which commonly results in calling people 10 to 20 times a day and more.  They don’t need to waste time on the phone arguing with people when they can just harass you by calling you every hour automatically.  I like to refer to this practice as "automated harassment.” This has the effect of people becoming so overwhelmed with the amount of calls they are receiving or the embarrassment factor of getting so many calls that they just pay to stop the harassment. 

Some robo-bullies say calling somebody 10 or 20 times a day really isn’t harassment but I have yet to meet one that is willing to say that to a jury.  Collectors also like to make statements like “we were just trying to help our client,” this is another ridiculous defense position that is easy to say while negotiating but again, would not play so well in front of a jury.

Top 10 Collection Harassment techniques:

  1. Repeated calls using automated systems (aka Robodialer-99.99% of collectors use these) 
  2. Repeated pre-recorded messages 
  3. Calling at work, or to third parties such as neighbors or friends
  4. Falsely reporting a debt on your credit report
  5. Sending letters that are misleading
  6. Sending letters to family members
  7. Threatening to file a lawsuit when there is no intention to do so
  8. Being rude or abusive on the phone
  9. Collecting money not owed
  10. Pressuring payment when you can’t afford it

I imagine there are some nice debt collectors out there, I just haven't met them.  The collectors that I have interviewed and deposed are not people I’d be inviting to a party.  And there is a built-in reason; they are so nasty and harass people.  They get paid a percentage of the amount of money they collect, and “harassment" works and makes people pay money.  Since hardly anybody sues them there is no reason, in their mind and according to their collection model, to stop. 

It’s time for us to rise up as a country and fight back against these bullies.  Call your local news station and tell them what is going on, they love good stories about bad actors, and find a good lawyer that makes a living suing those that harass our families and friends.