March 2013

In this issue:

  • The FTC has released its summary of top consumer complaints from 2012. Identity theft topped the list, followed by debt collection.
  • The FTC has announced a settlement with Equifax regarding alleged violations of the Fair Credit Reporting Act. The FTC alleged that the credit reporting agency improperly sold lists of consumers who were late on their mortgages. The Fair Credit Reporting Act prohibits selling credit information about consumers except for limited purposes.
  • A California court has ruled that a consumer’s conversation with the bank was not improperly monitored because the consumer’s agreement with the bank disclosed the potential for call monitoring. Bailey v. Household Finance Corp. of California.

Federal Trade Commission
The FTC has filed suit against 29 companies alleging that they sent unwanted text messages to consumers.  FTC v. Subscriberbase Holdings, Inc., et al.  The text messages were purportedly sent to notify recipients of prizes, but were actually intended to generate sales leads.

The FTC has released its summary of top consumer complaints from 2012. Identity theft topped the list, followed by debt collection.

The FTC has sued a business and its owners alleging deceptive marketing of health insurance products in violation of the Telemarketing Sales Rule.  FTC v. IAB Marketing Associates, et al.  Defendants allegedly used websites to gather contact information from consumers, then sold those consumers purported health insurance which actually was not an insurance product.

An individual and company have settled with the FTC and agreed not to use prerecorded messages.  FTC v. Roy M. Cox, Jr., et al.  The settlement included a $1.1 million civil penalty suspended due to inability to pay.  The FTC alleged that Cox used false and deceptive caller ID information including “CARD SERVICES” and “prep private office.”

The FTC has announced a settlement with Equifax regarding alleged violations of the Fair Credit Reporting Act.  The FTC alleged that the credit reporting agency improperly sold lists of consumers who were late on their mortgages.  The Fair Credit Reporting Act prohibits selling credit information about consumers except for limited purposes.

The FTC also announced a settlement with a payment processor after alleging that the processor charged consumers’ bank accounts without consent.  FTC v. Automated Electronic Checking, Inc.  The company will pay a settlement of almost $1 million and be banned from processing payments in the future.

Sixth Circuit Court of Appeals
An appellate court has refused to hear the appeal of a trial court order certifying a TCPA class.  In re. Lake City Industrial Products.  The defendant had claimed that the federal court did not have jurisdiction but the Sixth Circuit ruled that the United States Supreme Court has decided the matter and federal courts have “federal question” jurisdiction over TCPA claims.

Seventh Circuit
A court has ruled that misconduct by the plaintiff’s attorney did not preclude certification of a TCPA class of persons who received illegal faxes.  Reliable Money Order, Inc. v. McKnight Sales Co., Inc. The court ruled that the plaintiff attorney’s ethical breach did not prejudice their client or undermine the integrity of the proceeding and, therefore, allowed the class to proceed.

California
A California court has denied class certification in a TCPA case because credit card holders signed an arbitration agreement when they obtained their card.  Cayanan v. Citi Holdings, Inc.

A California court has ruled that a consumer’s conversation with the bank was not improperly monitored because the consumer’s agreement with the bank disclosed the potential for call monitoring. Bailey v. Household Finance Corp. of California.

Comment: I recommend disclosure of monitoring for all calls to or from California and other states that require “both” or all parties consent to a conversation being monitored.  Note that monitoring can take any form such as listening in, recording, third party extension, etc.

Missouri
Two Nevada companies have entered into a settlement paying the State more than $41,000 in penalties for violations of the State “do-not-call” law.  The settlement also included an injunction barring the companies from making telemarketing calls to any consumer in the state of Missouri if the person is on the Missouri “do-not-call” list, unless the consumer has expressly consented to receive the call.  Missouri v. Firebrand Group SL, et al.

The Missouri Attorney General also obtained a $55,000 judgment against a Florida business after he allegedly violated Missouri’s “do-not-call” law.  Missouri v. A+ Financial Center, LLC, et al.  The FTC has also taken action against this company alleging it sent illegal prerecorded calls to consumers with false caller ID information.

Missouri’s Attorney General issued its list of top 10 consumer complaints received in 2012.  Number one on the list of complaints was telemarketing calls to persons on Missouri’s “do-not-call” list.

Comment: It is very important that you remember that Missouri has a different “do-not-call” list than the federal list and its established business relationship exemption is shorter than the federal period.  Missouri actively enforces its state “do-not-call” list, although the list does have exemptions not contained in the federal law.

Missouri’s Attorney General has filed suit against a diabetic supply company from Tennessee alleging violation of Missouri’s “do-not-call” list.  The Attorney General alleges that he has received at least 500 complaints about the company.  Missouri v. Simplex, et al.

New Jersey
A federal court has upheld a ruling denying class certification in a TCPA unsolicited fax case.  Landsman & Funk, P.C. v. Skinder-Strauss Associates.  The trial court upheld New Jersey’s rule prohibiting class actions under the TCPA because they provide for a specific monetary award.