There are sooooo many manufactured TCPA lawsuits out there.
Plaintiffs will engage in a bunch of different techniques to set up these lawsuits. From filling out webform submissions and then denying ever having visited a website, to tricking a platform into sending bulk messages to their own number, to buying dozens of phones in the hopes of netting wrong number calls, the lengths folks will go to to earn a buck off of abusive litigation is pretty extreme.
My Stoops victory should have been the end of these games but, folks just haven’t leveraged the case properly so… here we are.
But the oldest–and arguably easiest–trick is just to use a fake name and ask the caller to call you back to net more purportedly illegal calls. This so-called “canary trap” is often deployed by a plaintiff looking to trigger a second call to get over 227(c)’s jurisdictional limit requiring two calls in a 12 month period to set up a private right of action. And whereas some courts begrudgingly allow the conduct–the argument by the Plaintiff is that they needed to receive a second call to learn the actual identity of the first caller– at least one court has now held that “canary traps” cannot be used to obtain treble damages.
In Dobronski v. Total Ins., Case No. 21-10035, 2021 U.S. Dist. LEXIS 186528 (E.D. Mich. September 29, 2021) a Plaintiff allegedly received an unwanted call. Rather than ask for calls to stop, the Plaintiff supplied a fake name and impliedly requested a further call. The next day he received a second call–and the caller knew the fake name. So, Plaintiff surmises, the caller–who identified itself on the second call–must also have been responsible for the first call.
Clever, or not, the Court found that Plaintiff had invited the second call. And without discussing whether the caller might still be liable for it, the Court concluded–at least–that no willful damages would be available:
Plaintiff responds that by giving the first caller a bogus name, he used an “investigative technique termed a ‘canary trap.'” Put another way, Plaintiff admits that he gave a false name during the first call for the purpose of inducing another call and thereby “trap” the caller. Because Plaintiff concedes that he engaged in conduct designed to encourage the second call, he gave implied consent to that call.
Notice that “implied consent” is not a defense to a TCPA suit–so the underlying conduct might still be actionable somehow. But at least willfulness damages will not be available.
I know this is gross folks. I’ve done my best to put a stop to it, but I can’t be everywhere at once. So you’re going to have to talk to your counsel about Stoops. Or have them call me.
Either way, we’ll keep an eye on this one.
Of course the second call doesn’t count once the called party speaks to a live agent. The conversation creates a 3 month inquiry EBR, so the second call wouldn’t count as a violation for 227(c) purposes, it’s exempted. The courts refusal to count it is correct, but the analysis is wrong. There is no such thing as “implied consent” defined within the TCPA, but EBR exemption is clearly specified and the inquiry EBR is defined in 47 CFR 64.1200(f)(5).