Mark one victory in the fight to hold accountable violators of consumer rights under the Telephone Consumer Protection Act. A federal judge in Illinois agreed to certify a class-action lawsuit against a telemarketing firm accused of repeatedly calling people without their authorization – even after the company had been asked to stop.
The case, Toney v. Quality Resources Inc., will proceed as a class action after the U.S. District judge ruled named plaintiff’s arguments were persuasive. The calls in question were reportedly automated, and began only after the individual’s in question provided their phone number when making a a purchase of children’s slippers from a third-party online vendor. That contact information, it now seems, was sold to the telemarketing firm, which then used it to target for telephone solicitations. This had allegedly been going on since 2009.
Named plaintiff, who filed her claim originally in 2013, claimed defendant telemarketing firm called her cell phone time after time after she ordered the slippers. Her phone number was on the National Do Not Call Registry. After the telemarketer purchased the information from the slipper company, the telemarketer called those individuals under the guise of confirming customer’s child slipper orders. In fact, the real reason for the call was to convince those consumers to purchase online coupons from a discount retail site, which had contracted with the telemarketer. That discount retail operator was later added to the consumer rights lawsuit, and later settled for $2.15 million.
While the federal judge called plaintiff’s presentation of the evidence in favor of certification, defense lawyers for the telemarketing company indicated it would be appealing that order.
For those who may be unfamiliar, the TCPA, codified in 47 U.S.C. 227, prohibits:
- Any person from making a pre-recorded, automatic telephone dialing system to contact emergency lines, guest rooms/ patient rooms at hospitals, nursing homes or similar establishments, or any telephone assigned to a cellular telephone service/ specialized mobile radio for which the person called is charged for that correspondence;
- Initiate any phone call to residential lines using artificial or pre-recorded voices to deliver messages without prior express consent of the person being called, unless it is an emergency or exempted by the Federal Trade Commission;
- Use any fax machine, computer or other devices to send unsolicited fax advertisements unless the sender has an established business relationship with recipient or the sender obtained recipients fax information from a voluntary communication, directory, or advertisement;
- Using an automatic phone dialing system in a way that two or more phone lines of a multi-line business are engaged at the same time.
The TCPA further allows a person or entity to bring action for violation of the law, and recover for either actual monetary losses or $500 for each violation – whichever is greater. If the court finds defendant knowingly or willfully broke the law, it can increase the amount of the damage award three-fold.
In this case, the scope of individuals allegedly affected surpasses 35,000, according to court records.
Defendants assert that by providing their phone number to the child slipper manufacturer, this amounted to their consent to be called by the telemarketer.
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Consumers Win Cert. In Telemarketer TCPA Suit, Aug. 16, 2017, By Sophia Morris, Law 360
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