READ AND DISCUSS: Letter from Phil Charvat– Noted TCPA Serial Litigant–to the Czar On Purported Lead Fraud and Manufactured TCPA Suits

Recently a noted serial TCPA litigant wrote to me with his side of the story. I thought it was an interesting read and, with his permission, I publish the content of his letter here.

By sharing this content TCPAWorld, of course, does not endorse these thoughts or confirm that anything below is true. Nor are we sympathetic to many of Mr. Charvart’s assertions. In some instances he is flatly wrong. Nonetheless, we believe in looking at all sides of an issue and, in case any of you are interested in the thoughts of a serial TCPA Plaintiff, here you go. All emphasis in original. 

“September 3, 2020

Via email to: Eric.Troutman@SquirePB.com

Dear Mr. Troutman,

A long time TCPA friend of mine suggested I watch your podcast with Anthony Paronich.  Because Anthony is one of our attorneys in several class action TCPA cases I “tuned in.”  I had previously read some of your postings on TCPAWorld.  In those I found many of your comments about repeat TCPA plaintiffs to be overly harsh given that in the overwhelming majority of such cases, it is the plaintiffs that are enforcing the law against those entities who have violated the law.  I do understand your biased position on this as being rooted in the side you chose to represent.  It was interesting to me that in your podcast your persona seemed much more reasonable and affable than I was expecting.

As a repeat (or “serial”, but please not “professional”) TCPA plaintiff since 1997 I can assure you that if I ceased to have to answer any more telephone solicitation calls, I would celebrate!  I already have other things I can do—and am already doing them.  Despite over 20 years of private and class action suits, I still get 5-10 junk telemarketing sales calls per day, all of which are unlawful.  Indeed, I do not believe I have ever answered a lawful solicitation call (exempt calls and those with EBRs excepted) since the TCPA regulations were first operative.  None of them start with the name of the caller on whose behalf it is being made, with a phone number or address, with correct caller ID, and with a statement of the purpose of the call is to sell a product or service as is required by the TCPA, the FCC, the FTC, and Ohio law.

There were two topics of particular interest to me in your podcast.  The first was your discussion with Anthony about a dilemma your clients (“callers”) face which contract with lead generators.  Anthony is better versed to discuss with you all the nuances of the factual issues regarding vicarious liability.  In the podcast you pointed out the specific problem of exercising too much control over a generator, and thus potentially triggering liability.

I understood the distinctions you drew, but would suggest that your clients, if they indeed are not just intentionally turning blind eyes, have an effective solution.  Auditing leads presented by the generators could not be construed as control of them.  In a low-key manner, your clients’ staff could ask a sampling of the leads sold by their generators whether or not they visited the relevant websites and entered in their telephone numbers.  Surely some people will not remember when asked, but if your clients get a number of clear denials of any such website visits with entry of their numbers, your clients could thereby detect contractual violations by its lead generators before one of those fabricated leads results in a call to a new or serial TCPA plaintiff’s telephone.

It has been my experience that private TCPA suits have little effect on corporate business model decisions, however class action suits are much more likely to bring entities into TCPA compliance.  Would it not be worth the small auditing cost for callers to avoid a multi-million dollar class action settlement or judgment?  Leads are indeed fabricated.  As I will outline below, in two class action cases of mine I have had such experience.  From the vicarious experience of others whom I trust, lead fabrication is increasing, and has become the “go to” defense of choice before defense counsel engages in its due diligence to thoroughly investigate the veracity of the lead generator’s records and before asserting the plaintiff engaged in improper conduct.

Fabrication of leads sold to entities such as your clients is common, not rare.  You mentioned that your clients’ blood pressure ramps up when a serial TCPA plaintiff sues—with the presumption in their minds that the plaintiff is at fault and has improperly generated a suit.  In my situation, my blood boils when my daughter or I get falsely accused of planting consent on a website to generate calls and thereby a suit.  Nothing could be further from the truth.  In my 10 or so years of private suits, and my 10 or so years of class action suits I have always taken care to avoid filing any complaint which was not grounded in fact.  In the two class cases I filed where my daughter and I were formally accused by defense counsel of planting call consent, my counsel and I were able to conclusively prove that the alleged consent records were indeed fabricated.  Just as I have told my daughter, the last thing I would ever want is for her to put my phone number on a website, causing me to get called, and resulting in a suit with the help of Matt McCue or Anthony Paronich, and then after large sums of time and money are expended by them, the case collapses.  She is mature, well aware of this, and frankly, could care less about calls to my house and my TCPA suits.  She has her own cell phone welded to her hand and her own life to lead.  Your clients should be delighted to know she has no aspirations to do what I have done.

I have no desire to sue anyone where I even might have visited a site and accidentally consented to be called via obscure links or language on the site.  As a matter of routine practice, if I encounter a website and it seeks my phone number, I close the window without entering a phone number.  With further caution, I send out “consent” letters (not “demand” letters) in advance of a potential suit to ferret out any alleged consent issue before either my counsel or defense counsel expends time and resources litigating a suit that might end with a dismissal.  Anthony alluded to this approach in your podcast.  I also discuss any possible problems in this area with my attorneys in advance of filing any complaint.  However, they and I know that just because a lead might be alleged to have been the result of my daughter or I visiting a website, that is extremely unlikely to be true.  The last time I discussed this issue with one of my attorneys it was his experience that in none of his cases with all other clients had such a consent allegation ever been found to be true.

Perhaps my class action case filed against AEP would be of interest for you to review for your clients who might genuinely wish to avoid unlawful call liability due to lead generator ethical lapses.  It might also change your and their presumption of improper conduct always laying at the fingertips of a plaintiff.  I live in central Ohio.  AEP has its headquarters in the county where I live.  I received unlawful solicitation calls on behalf of AEP.  Subsequently, my counsel filed a class action suit.  I was told by my attorney that counsel for AEP stated to him (paraphrasing) ‘I have watched Mr. Charvat in the county courts over the years and have admired what he was doing, but never expected AEP to be sued by him.’  AEP believed it had a good contract with a reputable lead generator.  AEP’s opinion seemed to change when it investigated.

AEP counsel professionally settled my case, and then AEP sued its lead generator.  Indeed, so ethical and reputable I switched my natural gas service to AEP.  You should get a copy of that cases’ complaints and counterclaims and read what AEP’s lead generator was alleged to have done to AEP.  See:  AEP Energy, Inc. v. Infinity Marketing Group, et al., No.1:15-cv-05485, U.S. Dist. Ct., Northern Dist. Illinois, Eastern Division.  One just has to read the allegations to realize the existence of the potential problems lead generators can cause for their clients.  It should be a real “eye opener” for your clients who trust lead generators and arrogantly presume class plaintiffs or their counsel are the wrong doers.  If you present a summary of that case to your clients and they don’t start auditing their own lead generators, perhaps they will might well wish in the future that they had.  As is often written, “Guide your clients accordingly.”

Regards,

Phil Charvat”