Advertising Law Blog

Businesses should not delude themselves about the serious legal risks incurred by the use of autodialed telephone calls. There is an army of professional plaintiffs out there waiting to sue, and they are growing more and more aggressive in their efforts to find targets.

The shocking lengths to which plaintiffs will go to file claims under the Telephone Consumer Protection Act (“TCPA”) was revealed in Stoops v. Wells Fargo Bank, N.A., decided on June 24, 2016 in the Western District of Pennsylvania. A serial plaintiff, Melody Stoops, admitted in deposition testimony that she had purchased at least thirty-five cell phones with prepaid minutes for the purpose of receiving calls that would allow her to file TCPA lawsuits. She specifically sought out phone numbers in the 863 and 305 area codes because she believed they represented economically depressed regions and therefore would be more likely to receive autodialed debt collection calls. Stoops records and logs incoming calls and even carries the phones with her when she travels so that she can answer the calls and identify the callers. Court records show that Melody Stoops was the plaintiff in at least eleven TCPA cases in the Western District of Pennsylvania. She worked with her sister to file others, and still more cases were filed in state court.

Eventually, calls from Wells Fargo came. Wells Fargo was looking for a home mortgage borrower named Newman, who had likely listed the phone number now belonging to Stoops on a loan application. Between September and November of 2014, Wells Fargo initiated 73 calls to one of Stoops’ numbers, resulting in 19 actual communications. A different Stoops phone received another twelve calls looking for a customer named Pereira, and five of them were actually answered by Stoops.

After more than a year of litigation, including motion practice and depositions, Wells Fargo prevailed on a summary judgment motion. The Court ruled that Stoops lacked standing to bring TCPA claims because her privacy interests were not violated by the calls. “Because Plaintiff has admitted that her only purpose in using her cell phones is to file TCPA lawsuits, the calls are not ‘a nuisance and an invasion of privacy.’ The Court therefore must reject Plaintiff’s argument that she suffered an injury-in-fact because her privacy interests were violated. [… ] Plaintiff’s interests are not within the zone of interests intended to be protected by the TCPA. Plaintiff’s interests, which include purchasing cell phones with the hope of receiving calls from creditors for the sole purpose of collecting statutory damages, are not ‘among the sorts of interests [the TCPA was] specifically designed to protect.’ […] It is unfathomable that Congress considered a consumer who files TCPA actions as a business when it enacted the TCPA as a result of its ‘outrage over the proliferation of prerecorded telemarketing calls to private residences, which consumers regarded as an intrusive invasion of privacy and a nuisance.’”

Despite the favorable decision, most businesses would not consider this a winning scenario. Wells Fargo spent five figures, if not six figures, to win this lawsuit, and because the ruling was so fact-specific, the precedential value of this ruling is not yet clear.

TAKEAWAY:  If you are a business making autodialed calls, it behooves you to take every available precaution to learn about reassigned numbers. The professional plaintiffs are out there, waiting for businesses to slip up.