MAY 2016

FTC

A phone billing company will pay $5.2 million to resolve charges brought by the Federal Trade Commission that it “crammed” consumers’ telephone bills.  In the matter of: Billing Services Group.  The Billing Services Group operators of phone billing aggregate are passing charges from third party telephone companies and placing them on consumers’ telephone bills.

The FTC has obtained a $13.4 million judgment against BlueHippo Funding and its owner Joseph Rensin.  The FTC charged that the defendants were in contempt of an earlier consent judgment by offering thousands of consumers’ new computers but failing to provide the computers or disclose key aspects of the refund policy.

The FTC has amended a complaint against businesses and their owners in an alleged tech support scam.  FTC v. Click4Support, LLC et al.  The complaint alleges Telemarketing Sales Rule violations including “accomplice” liability for handling charge-backs, processing credit card payments, and opening bank accounts for other defendants even though they knew or had reason to know those other entities were engaged in illegal telemarketing practices.

Senate

The Senate Committee on Commerce Science and Transportation held a hearing on May 18, 2016, titled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business”.  Chairman John Thune’s majority statement noted that TCPA litigation is a booming business with a “hyper litigious” environment.  Several examples of TCPA litigation abuse were discussed, including Lemberg Law which has an app for consumers to use to generate TCPA litigation.  Anderson & Wanca, another TCPA plaintiff firm was also mentioned.  The Indiana Attorney General Greg Zeller discussed the debt collection exemption to the TCPA recently passed by Congress and said it undermined his state’s law.

Comment: We have challenged the TCPA ATDS restriction in court arguing that its numerous exemptions make it a “content-based” restriction on speech presumptively unconstitutional.

TCPA

At least two TCPA class actions have been filed against Donald J. Trump for President.  Both allege the Trump campaign sent them unsolicited text messages.  Roberts v. Donald J. Trump for President.

Arizona

Arizona has amended its definition of “telephone solicitation” to include offers “to or from” a person located in Arizona.  (SB 1375).  Thus, telemarketing companies located in the state of Arizona which do not solicit in that state would still need to review registration requirements and exemptions prior to calling.

California

A California call monitoring statute which provides for damages of $5,000 per incident has been used aggressively by class action plaintiffs and attorneys to make claims that calls were monitored without consent.  In 2014, a federal judge ruled that businesses monitoring their own calls were not subject to this “eavesdropping” statute that the plaintiff appealed.  That appeal is scheduled to be argued August, 2016 in Pasadena.

Comment: This statute is subject to many sorts of abuse including plaintiffs calling 800 numbers, intentionally opting out of IVR disclosures, and suing claiming their calls have been monitored without their consent.

Colorado

Colorado has passed a law (HB 1306) requiring mortgage loan originators comply with the TSR, Gramm-Leach-Bliley Act, and other federal laws.

Delaware

The Delaware telemarketing registration bill (HB 270) has passed, changing the state’s registration rules which currently allow a seller telemarketer to make calls when an application has been filed to allowing calls only after the registration certificate has been issued by the Director or Consumer Protection Unit.

Maryland

A bill has been introduced in the Maryland House (HB 4334) which would require disclosure of the name of the telemarketing company making the call and the purpose of the call within the first minute of the telemarketing call.

Massachusetts

A bill has been proposed in the Massachusetts Senate which would regulate prerecorded telephone solicitation calls (SB 2246).  The bill would require use of a valid caller ID and require prompt disclosure of the name of the telemarketing company and the name of the ultimate seller within the first minute of the call.  Further the bill would prohibit all prerecorded calls to mobile telephone numbers including political calls.  The statute would also provide for a private cause of action for actual monetary lawsuits or $10,000 for each willful and knowing violation.

The Massachusetts House is considering a bill (HB 4180) which would require disclosure in the first minute of a telephonic sales call of the name of the telemarketing company and the name of the ultimate seller.

Michigan

A bill has been proposed in the Michigan House (HB 5615) which would prohibit companies which make solicitation to consumers in their home from disclosing any nonpublic personal financial information about a consumer to a third party unless the consumer is provided advance notice of the disclosure and does not object in writing.

New Jersey

The New Jersey General Assembly is considering a bill (AB 3628) which would require transmission of caller identification information and require that that number be answered during normal business hours.

New York

A federal court has held that a TCPA claim does not survive the death of a plaintiff.  The court also ruled that damages of up to $1,500 per call are “fully disproportionate to the harm suffered.”  This could be an indication that these penalties violate the constitution.  Hannabury v. Hilton Grand Vacations Co.

Uber

A named plaintiff in a class action against Uber which resulted in a $100 million settlement has challenged that settlement saying he felt “utterly betrayed” by class counsel.  Class counsel will receive at least $21 million in fees, while most drivers will receive less than $30.

Comment: In the TCPA area, the only people getting rich are TCPA class action plaintiff’s attorneys.  The hypothetically injured class members and the decent businesses that attempt to serve them lose in the hyper-litigious TCPA arena.