A federal district court judge refused to certify a class led by a serial plaintiff who prolonged unsolicited calls in order to create a cause of action under the Telephone Consumer Protection Act (TCPA). The decision is a useful one for companies faced with TCPA actions brought by a small number of “frequent flyer” TCPA plaintiffs who have made a living off of bringing TCPA claims by effectively inviting calls and texts from unsuspecting companies.
The TCPA, found at 47 U.S.C. § 227, was enacted in 1991 and restricts both telephone solicitations and the use of automated telephone equipment. The TCPA’s restrictions extend to fax machines, autodialers, and voice messaging systems. Unless recipients have given prior express consent, the TCPA and Federal Communications Commission rules prohibit companies from calling residences before 8 am or after 9 pm, requires solicitors maintain a company-specific “do not call” list that must be honored for five years, requires solicitors to respect the national Do Not Call registry, provide their name, the name of the entity on whose behalf the call is being made, and a telephone number at which they may be reached, among other prohibitions and regulations.
Most pertinently, the TCPA provides a private right of action that allows an individual to sue for up to $500 for each violation. These damages triple to $1,500 in the event of a willful violation.
This private right of action has made serving as a class representative in putative and certified TCPA class actions a lucrative business, and indeed, some individuals have created a cottage industry of the practice. In many of these instances, questions arise as to whether a class representative manufactured the alleged violation and, if so, what relief may be available to the defendant.
On September 30, 2021, a judge in the Southern District of Florida addressed that issue head on by denying certification of a class represented by a plaintiff who manufactured his claim.1 The one-count class complaint alleged that the defendant initiated telemarketing calls to residential phone numbers, despite the fact that the numbers were registered on the national Do Not Call registry. The judge observed that the plaintiff “appears to have an extensive history with filing lawsuits alleging violations of the TCPA,” and that since 2014, the plaintiff had made on average $60,000 a year on TCPA lawsuits. The plaintiff even admitted that it was his “typical practice” to pose as a customer when he received an illegal telemarketing call.
During the defendant’s first few calls at issue in the litigation, the plaintiff had actively posed as a customer and discussed the defendant’s available products. The court observed that during these calls, the plaintiff voluntarily provided the representative who contacted him with an email address and requested additional information about the vacation package the representative had called him to discuss. The plaintiff also confirmed the false contact information that the representative had on file so as to prolong the call. The court took issue with this behavior.
Plaintiff readily admits that his conduct during . . . the telephone conversations was deceptive. Plaintiff intentionally prolonged and continued the telephone conversations by posing as Defendant’s customer, interested in a vacation package . . . Plaintiff also admits that he believes deception is appropriate behavior for a class representative.
The court ultimately held that the plaintiff did not satisfy either the typicality or adequacy of Rule 23(a), and thus denied certification of the class. The court reasoned that the plaintiff’s claim was “inherently different” from those of putative class members because his “deceptive and dishonest tactics” employed to establish his claim were presumably not used by putative class members. This conduct, ruled the judge, necessitated additional inquiries with respect to standing, consent, and damages. Further, the plaintiff’s behavior, and his professed belief that such behavior was appropriate, gave the court “serious concerns” about his honesty, trustworthiness, and motives in bringing the putative class action.
This is not the first time a federal court has rejected TCPA claims brought by plaintiffs who invite prohibited calls. In March of 2020, Leyse v. Bank of America, a New Jersey district court granted summary judgment for the defendant in part because the plaintiff’s behavior, specifically in making several follow-up calls and refusing to be added to a Do Not Call registry, indicated that he was not in fact injured by the calls as required to show Article III standing.2 In Credit One Bank, N.A. v. Lieberman, an arbitrator ruled that a plaintiff in a TCPA lawsuit had to pay the defendant $286,064.62 for his scheme in which he induced the defendant to call him over 600 times to manufacture a lawsuit.3
These decisions highlight the dangers of deceptive plaintiffs but also show that some courts have been less tolerant of such illicit methods. Businesses that make use of telephone solicitations must continue to keep meticulous records of both individuals who have requested to be added to the Do Not Call registry and how solicitation calls are initiated and conducted. If possible, recording calls can also prove a useful tool in these circumstances. A TCPA defendant that can show how a plaintiff willingly, and deceptively, participated in supposedly prohibited calls may have options at class certification and summary judgment.
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1Johansen v. Bluegreen Vacations Unlimited, No. 20-81076-CIV-SMITH, 2021 U.S. Dist. LEXIS 207872 (S.D. Fla. Sep. 30, 2021).
2Leyse v. Bank of Am., Nat’l Ass’n, Civil Action No. 11-7128 (SDW) (SCM), 2020 U.S. Dist. LEXIS 44234 (D.N.J. Mar. 13, 2020).
3Credit One Bank, N.A. v. Lieberman, No. 21-2923, 2021 U.S. Dist. LEXIS 145870 (D.N.J. Aug. 4, 2021).
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