Are you getting marketing text messages late at night? You might be able to sue for damages.

 Under the Telephone Consumer Privacy Act, or TCPA, a company is not supposed to engage in automated calling or text messaging without your permission. They also aren't allowed to send automated messages to you before 8:00 AM or after 9:00 PM your time.  I received a complaint from a person who is receiving late night messages repeatedly from patpat.com.  If you are repeatedly getting text messages you didn't sign up for, or outside of 8:00AM-9:00PM, please contact me.  

TCPA - The best way to revoke your consent to get robocalls

Probably THE hot area in consumer law right now is the TCPA, the Telephone Consumer Privacy Act.  Among other things, the TCPA prohibits auto-dialed calls to personal cell phones for commercial purposes without prior written consent, and each call that violates the TCPA can bring damages of $500-1500.

One of the thorniest issues involves consent and revoking consent. Many times people give consent in boilerplate contracts, paper or online clickboxes, often without realizing it.  It is clear, however, that once you give consent, you can revoke it. Per FTC guidelines, you can revoke consent orally or in writing in any reasonable manner.

When people are getting calls I generally recommend that they first revoke consent orally, with some prof that they did it, for example by recording your call where you revoke consent. (Technically you can always record a call if you live in a "single party consent state". If you live in one of the few dual party consent states, recording the call may violate a wiretapping statute.) Another option is to put the call on speaker phone and have a witness listen to you call revoking consent and make "contemporaneous notes".  I've never actually had anyone do this though.

What do you say to revoke consent? "Don't call me anymore."  If you want to get technical, "I hereby revoke my consent for you to call me."

After revoking consent orally on the phone, I urge people to write to the company calling and  revoke it in writing.  The challenge sometimes is to find the right address to write. There are cases where  consumers  thought they were revoking, but because the letter didn't get to the right subentity, they lost their case.  For example, the consumer who sued Target card, which was owned by TD Bank, but the consumer faxed their revocation to the wrong departments at TD Bank.  As a general rule, you can send your revocation to the address given on a statement for correspondence. I personally believe that you can send your revocation to the registered agent of a corporation in your state, IF the corporation whose agent you are sending it to is the same corporation that is calling you.  This is one that I haven't tested out yet.  Oral revocation followed by revocation by certified mail to registered agent has a lot of promise for maximizing damages, however. After oral revocation is ignored, the calls after oral revocation stand a good chance of qualifying for maximum damage of $1,500 per call for willful violations. The delay in communications received by the registered agent to the operating office of the company will generally result in calls that are received afte

If you are an Indiana resident who is receiving robocalls to your cell phone, or if you are receiving unsolicited fax advertisements (another TCPA violation), I urge you to call me at 317-662-4529. There is another major area of prohibition under the TCPA, telemarketing calls to home telephones on the do-not-call list. Unfortunately, these days, those calls tend to be placed by scammers that have carefully insulated themselves from lawsuits, and in my experience, not even 1 out of 100 of these calls can be practically sued upon.

Are you receiving Telemarketing Calls from Yodle? - ROBOCALLS

Are you receiving automated telemarketing calls from a company called Yodle? These calls, with an automated voice greeting are almost certainly autodialed and subject to the restrictions of the TCPA (Telephone Consumer Privacy Act.)  The TCPA allows you to go claim $500 to $1500 in damages for all auto-dialed calls to your cellphone (or residential landline if you are on the "do not call" list) if the calls were made without your express permission.  I received two calls from this company; however the calls I received were to my Google Voice number which might not be covered by the TCPA. If you receive calls from this company, please call a consumer lawyer in your area. You can find one at www. consumeradvocates.org.

Have you been getting Telemarketing Calls from (317) 548-4319?

I have received a complaint about spam telemarketing calls from 317-548-4319. The automated voice associated with these calls asks the callee if he/she is interested in a home security system and offers to transfer them to a live operator. You should be aware that unless you gave specific permission for this company to call your cell phone, or if this company calls your landline after you have added your number to the "do not call" list, thate caller could be violating the Telephone Consumer Privacey Act, and you can sue the caller fro $500 to $1500 per call.  Please contac tmy office at hoferlawindy.com for more information.

Have you been receiving collection calls from Sallie Mae or Navient?

Have you been receiving telephone harassment calls from Sallie Mae, Navient, or collectors working for these companies? If you live in Indiana, call me at 317-662-4529, and I will give you instructions on how to minimize these calls, and if the harassment continues, how to maybe, just maybe receive damages under the Telephone Consumer Privacy Act (TCPA).

Have You Been Receiving Collection Calls from GLA Collection Company Inc.?

We are representing a consumer in a lawsuit against GLA Collection Company Inc. alleging violations of the Telephone Consumer Privacy Act (TCPA).  If you have been getting collection calls from this company, we'd love to hear from you.  Call me at 317-662-4529 or email me through the link on this page.

Holy Cow: Supreme Court Does the Right Thing - Campbell-Ewald v. Gomez

Yesterday the Supreme Court decided the case of Campbel-Ewald Co. vs. Gomez.  This is a case that consumer advocates were anticipating with some trepidation. At issue in the case was a tactic that corporate defendants regularly practice to "pick off" class actions and avoid class action liability. Corporations regularly make "Rule 68 Offers of Judgment" to the named plaintiffs in class actions giving the named plaintiff the full relief the named plaintiff can receive, and then argue that there is no further controversy as to the named plaintiff, so the case is "moot" and must be dismissed.  We weren't looking forward to this decision because this same Supreme Court upheld boiler plate arbitration clauses that mandate arbitration and prohibit class actions.  The Supreme Court did the right thing though, and its decision yesterday makes it harder for defendants to pick off class actions through Rule 68 offers.

Mr. Gomez received unwanted text messages from Campbell Ewald, a contractor for the navy. The messages touted Navy careers. Mr. Gomez asserted that at age 40, he was understandably not interested in Navy careers (and the Navy probably wasn't interested in him), and he sued under the Telephone Consumer Privacy Act, a statute which tries to discourage unsolicited text messages by imposing liability against the sender of up to $1,500 per message if it is sent willfully. Mr. Gomez also sued on behalf of the class of other people who got the unsolicited messages. Campbell Ewald defended by offering $1,500 for each message Mr. Gomez received, then claimed the case was moot because Gomez could not obtain any more relief than what was offered.   There was a split in the federal circuits on whether such an offer moots a case, so the Supreme Court accepted the case to settle the issue.

Much to our surprise, the Supreme Court ruled for Mr. Gomez, the plaintiff.  The opinion, written by Justice Ginsburg adopted reasoning by Justice Kagan in an earlier dissenting opinion written by Justice Kagan when she was a court of appeals judge.  The court ruled that an offer of judgment not accepted simply lapses.  It only becomes relevant again on the issue of costs at the end of the case. (That is what a the plain text of the rule says.) The liberal-moderate wing was surprisingly joined by Justice Thomas in a concurring opinion making the ultimate decision 6-3. 

The Campbell-Ewald case once again shows that the make-up of the Supreme Court is important, and who we elect as President makes a difference in who is on the court.  Clinton-appointed Justice Ginsburg wrote the opinion, and Obama-appointee Kagan provided the persuasive reasoning. 

Have you been getting harassing calls on your cellphone regarding student loans?

If you are an Indiana resident contact my office if you are receiving harassing phone calls to your cell phone regarding student loans, or even other loans.  It doesn't matter whether these calls are coming from the loan originator or a later collection company.  Call us at 317-662-4529

Put Geek Support on Life Support

Lately I have been getting calls to  my landline from a blocked number.  The call is clearly auto-dialed with a pause before a live person .  on.  the call clearly comes from an overseas call center.  The person comes on the line with a generic American name and says he/she is from "geek support" and is calling about my computer.   I don't have any technical support calls in on my computers, and I know it is a scam.  I try to engage the caller, but he senses something is fishy and he hangs up.

I think these are the same people that called my elderly mother.  They got her quite worried, and she was ready to go along with their pitch until she figured something was wrong and hung up.

I have never subscribed to the argument that scammers should have free reign to take advantage of the most mentally infirm customers.  When you think about it, we all hope to get to the point one day when we don't have the mental skills we had at our peek.  At the same time, when we are aged, we don't want to have to be locked in a closet to keep from being preyed upon by every scammer under the sun.  I don't believe in a "gotcha" society.  It shouldn't be "open season on grandma".  

What can you do about overseas telemarketing scams? Realistically, there's not a whole lot that I can do as a private lawyer about overseas scammers using blocked numbers. The Federal Trade Commission and the Federal Communication Commission, on the other hand have more resources and international connections, and they can. They just need to make it a higher priority.  If you receive a predatory call, complain to the FCC  and The FTC.  If you have the opportunity, see if you can get information from the scammer to identify them and the numbers they are calling from.   If you or your family members give them money, if it is by credit or debit card, contact the company that issued your card and ask about their fraud procedure.  If you give them personal information and/or access to your computer, that creates a messy situation that is not easily resolved and has to be handled on a case by case basis.

Here's a link to FTC information on phone scams.

One last thing: it is easier dealing with telemarketing calls to cell phones rather than land lines. If you are getting telemarketing calls to your cell phone, you should make a recording of you getting information about the identity of the caller and you telling the caller that they do not have permission to call your cell phone, then give the number. If they call you after that, using an automated dialer or recorded voice, you can sue them for damages based on the number of calls they made.  If you are getting auto-dialed telemarketing (or collections) calls, contact our office or find an attorney close to you through the National Association of Consumer Advocates at www.naca.net.

Bankers Lobby Defeated in Fight Over Robo-Calling Rules

The Federal Communications Commission issued new rules concerning robo-calling under the Telephone Consumer Privacy Act, or TCPA.  Among other things the TCPA provides remedies for consumers when they receive auto-dialed telemarketing or collection calls to their cellphone when the consumer has not given the caller permission.

Under the TCPA, consumers have the right to sue for $500 per unauthorized robocall to their cell phone with that number tripled in cases of intentional violations.  The  Consumer Law Office of Steve Hofer is working on Two TCPA cases at present.

The banks had lobbied for complete exemption of liability to wrong number telephone numbers. The FCC made a slight concession and now exempts one call to a wrong number phone.  This is the right decision.  Nobody really files suit for one call anyway. The TCPA does not have a clause providing for attorney fees separate from the consumer's per call damages. That means that attorney fees for the violations have to come out of the consumer's damages.  Unless the consumer has been called numerous times, there is no economic incentive to file suit.  If a bank or other commercial caller calls your phone one time by mistake, there's not enough harm to justify a law suit.  But if a bank calls your phone "by mistake" numerous times it is harmful enough to justify damages just to encourage the caller to be more careful.