Are You Properly Vetting Potential TCPA Claims?

How often do you evaluate your client intake forms to ensure that they are as effective as possible? Guest blogger and NACA member Scott Owens shares his tips on how to best structure your intake forms to ensure that you collect all relevant information and avoid potential problems with TCPA cases. 

Despite the best efforts of the banking industry, the debt collection industry, and others, the FCC’s TCPA Omnibus Declaratory Ruling and Order sends a clear signal that the TCPA is here to stay—at least for now. In light of that ruling, the aforementioned industries now appear more determined than ever to challenge every case, at every turn. Before the ink was dry on the most recent FCC Order, the Professional Association for Customer Engagement (PACE) filed an appeal asking the Seventh Circuit Court of Appeals to vacate the Order—and two more appeals have since been filed. That said, it remains as important as ever to effectively vet potential clients and claims. There is a legal maxim: bad cases make bad law. Therefore, having a well-drafted intake form is an important first step in helping to avoid certain pitfalls.

It is the practice of my law firm to make sure all potential clients fill out an intake form.  It has happened more than once that a client inquiring about a FDCPA matter or debt collection defense does not even realize that they are sitting on a six-figure TCPA claim. We make a point of asking all potential clients whether they are receiving debt collection calls intended for someone else. That single query has resulted in hundreds of thousands of dollars being recovered by our consumer-clients. In your own practice, you may be defending consumers in foreclosure actions.  Have you asked your own clients facing foreclosure whether they are receiving robocalls to their cellular telephone? Think about it – if your client has requested the calls to stop, you may have enough in statutory damages to offset any arrearage.

Regardless of how you handle client intakes, be it though forms or otherwise, there is certain “must have” information that you need to acquire in order to ensure that you have a viable claim. At a minimum, and in no particular order, you will need to know whether your client is receiving calls to a cellular telephone or to a residential landline.  The TCPA, 47 U.S.C. § 227 et seq. treats calls to each type of phone quite differently, and what constitutes a violative call placed to a cellular telephone may be perfectly legal if place to a landline.And don’t forget, text message are calls, too, as set forth in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Important questions to consider at this stage include: What is my client’s relationship to the phone? Is it registered in his or her name? It is part of a family or group plan registered to someone else? Who pays the bill? Is it an employer-provided cell phone?

Next, it is important to discover the nature of the calls. Who are they from? Are the calls made in connection with the collection of a debt or are they telemarketing calls? If so, what is the caller selling? When did your client begin receiving the calls? Has the client kept a call log? If the caller is sending text messages, do the messages give the ability to opt-out? Is the caller leaving prerecorded messages?

Finally, is your client the intended recipient of the calls or is the caller looking for someone else? So-called “wrong call” cases have been the subject of much litigation in recent years. See, e.g., Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012); Osorio v. State Farm Bank, FSB, 746 F.3d 1242 (11th Cir. 2014); Breslow v. Wells Fargo Bank, NA, 755 F.3d 1265 (11th Cir. 2014). In its attempt to put the issue to bed once and for all, the FCC’s recent order may just have the effect of muddying the waters even more. Simply put, “wrong call” means “no prior express consent.” Practically speaking, prior express consent is the only affirmative defense to aTCPA violation.Baird v. Sabre, Inc., 995 F. Supp. 2d 1100 (C.D. Cal. 2014); Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215 (S.D. Fla. 2014); Levy v. Receivables Performance Management, LLC, 972 F. Supp. 2d 409 (E.D.N.Y. 2013). Auto-dialer dependent callers almost universally claim that they had prior express consent to call your client. It is, therefore, critical that you also inquire of your client whether he/she ever released his/her cell phone number to anyone related to the caller and, if so, how. Likewise, did your client ever instruct the caller to stop calling? Consent, even if given, can be withdrawn, as set forth in the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling, __ F.C.C. Rcd. ____ (July 10, 2015).

In closing, I would suggest from my own personal experience that there are two especially significant scenarios to check for that might spell doom for your potential TCPA claim. The first scenario is when calls are made to a cellular telephone but are, in fact, forwarded from a landline. Typically, these calls do not actually violate the TCPA. The second scenario is when your client has revoked consent and may therefore be sitting on a jackpot. Don’t inform your client of the potential jackpot and simply have him/her fill out the intake form; otherwise, he/she might leave out certain key details that could yield a more viable claim. The main point to keep in mind here is that you can never have too much information. The more detailed your intake form, the more likely you are to receive every piece of relevant information from your client and therefore spot inconsistencies in your client’s recollection or envision the defenses you will likely face.

Do you have any additional tips regarding intake forms that you could share with others? Take a few minutes to review your own intake forms and ask yourself: what can I do to improve them?

Scott D. Owens owns the firm of Scott D. Owens, P.A., a consumer law practice located in Hollywood, Florida. As one of Florida’s most recognized consumer advocates, Scott has represented consumers for the past eight years with regard to: violations of the Fair Debt Collection Practices Act (FDCPA); violations of the Florida Consumer Collection Practices Act (FCCPA); violations of the Telephone Consumer Protection Act (TCPA); and violations of the Fair and Accurate Credit Transactions Act (FACTA). Scott has certified more than twenty class actions since becoming a member of the National Association of Consumer Advocates (NACA) in 2007.