Cooked claims? Maybe, says court, but harm is real

Squirrel Attack!

There are any number of good reasons Jan Konopca kept his landline number and switched over to cell phone service.

For instance: The wires that ran to his residential line were being gnawed on by squirrels. Also, the number on his landline was easy to remember; he kept it so that his elderly mother would have an easy time recalling it. And he wanted the women he met at bars to be able to remember his number after knocking back a few drinks.

The New Jersey resident offered these rationales in a TCPA suit brought against FDS Bank in 2015.The company called Konopca more than 600 times between 2011 and 2015, when Konopca decided to sue FDS in the District of New Jersey.

It’s a Living

The defendant had a different take on the service switch.

Turns out that Konopca’s suit was simply the latest in a string of 31 lawsuits he brought against a variety of defendants under the Telephone Consumer Protection Act (TCPA) – 21 of which were related to calls he received on the very same squirrel-abused phone number. FDS also shared Konopca’s total winnings from these cases with the court: $800,000. Konopca seemed to be making a pretty good living off the suits.

In this case specifically, FDS maintained that Konopca switched the service from landline to cell so that he could sue the company under the TCPA, which treats calls to the two types of services differently when it comes to necessity and type of consent required to places calls using autodialers or with pre-recorded messages. And because he chose to make the switch for the purpose of raising the suit, he had manufactured his own injury, and did not have standing to sue under the TCPA.

Licensed to Bill

In an order issued on Nov. 22, 2017, the court responded to FDS’ motion for summary judgment by addressing issues raised in earlier cases in which so-called professional plaintiffs, including one who stockpiled phones hoping to attract TCPA violations, lost standing because they sought out their own injury.

But in a surprising turn, the court concluded that the cases were not applicable to Konopca’s claims. “Although it is most probable that Plaintiff manufactured the harm based on his motivation to be awarded monetary awards in the lawsuits,” the court stated, “the case is distinguishable … by the fact that Plaintiff never gave consent …” In other words, the actual harm suffered by the plaintiff rendered questions of his motivation irrelevant.

The Takeaway

The court went on to say that because both the defendant and the plaintiff had weak cases, it would apply the Third Circuit Susinno decision that held that a “single call in violation of the TCPA was sufficient harm to show standing.” The case will go on.

Companies that engage in telemarketing or non-telemarketing calls or texts, including with vendors and collection agencies, need to ensure that such programs comply with the complex consent requirements of the TCPA. The TCPA provides per-call statutory damages, which on a class-wide basis and even an individual basis can mount up significantly, and the Federal Communications Commission and courts have read the legislative history to support very strict, technical and pro-consumer interpretation and application of the law. And watch out for the squirrels.