After the firestorm caused by the train wreck Mantha ruling it is so refreshing to be able to discuss a GREAT case with clean, simple and correct analysis involving online TCPA disclosures. Plus a repeat TCPA Plaintiff found himself on the losing side of the TCPA ledger–again.
For those of you who haven’t been following along, in Mantha a court recently held that a caller cannot rely on a TCPA consent disclosure on a website unless the consumer separately entered into an ESIGN agreement to do business with the caller electronically. Nutso.
And, previously on TCPA.WORLD, frequent TCPA flyer Ken Johansen saw his career as a TCPA class representative seemingly come to a lonesome death when a court found that his behavior in “investigating” TCPA suits (by feigning interest the products and services offered by callers) was too “deceptive” to permit him to represent a class.
Well these two story lines just collided in dramatic fashion in Johansen v. Efinancial Llc, CASE NO. 2:20-cv-01351-DGE, 2022 U.S. Dist. LEXIS 8798 (W.D. Wash. January 18, 2022)(Johansen LVI).
In Johansen LVI the Defendant moved for summary judgment arguing that Mr. Johansen had supplied his number on a website and then engaged in a lengthy discussion with an agent selling final expense insurance during which he (Johansen) supplied a bunch of personal information and seemed ever-so-interested in the product Efinancial was selling. Although Johansen claimed he was just playing along to “investigate” who was calling him, the Court was not having it.
First, the Court found that consent to be called can be properly obtained via an online disclosure WITHOUT any ESIGN agreement. Nice simple analysis here:
The FCC has determined that the “signed, written agreement” requirement may be fulfilled by submission of a website form. Applying this guidance, courts have found that a person can provide prior express permission by submitting a web form with personal information when the web form includes a notice that the person agrees to be contacted.
Johansen, however, claimed that he did not actually visit the website and provide his consent. But the Court was unmoved. Johansen did not object when he received the call and, instead, provided detailed personal information consistent with actually seeking the product being offered. Moreover the email used to submit the request was associated with a physical address that Johansen supplied during his call, so the Court found “no evidence” supporting his claim he did not provide consent.
Now on this latter point Johansen LVI departs from the weight of authority–usually a court will credit (at the MSJ stage) a Plaintiff’s denial–under oath– of having visited a website and find a question of that that the jury must resolve. (In other words, a defendant will usually lose this argument.) But EFinancial won. Why?
Well taking a look at FN1, we see that the Court was not enamored of Johansen’s track record in “investigating” TCPA suits and just wasn’t going to credit anything the guy had to say:
Other courts have questioned Plaintiff’s actions of posing as a customer of an entity responsible for initiating a telemarketing call. Plaintiff has filed approximately 60 lawsuits under the TCPA, and has developed what one district court characterized as an “extensive and profitable history with lawsuits involving TCPA claims”: Plaintiff acknowledges that he has developed a “typical practice” of deceitful conduct used to succeed in prosecuting TCPA claims. Plaintiff poses as a customer of the entity responsible for initiating the telemarketing call and induces the representative into believing that he is, in fact, an established customer and genuinely interested in the product or service offer, thereby prolonging the purported injury that Plaintiff claims to have suffered and increasing the potential damages that he could, in theory, recover. Johansen v. Bluegrass Vacations Unlimited, Inc., No. 20- 81076-CIV-SMITH, 2021 WL 4973593 at *1, 5 (S.D. Florida Sept. 30, 2021). The Court in that case denied Plaintiff’s motion for class certification, citing Plaintiff’s contention that engaging in deception was appropriate behavior for a class representative, and “serious concerns” about Plaintiff’s “credibility, honesty, trustworthiness, and motives” in bringing forth the putative class action. (Id. at 5-6.)
In another case, Plaintiff admitted that he “posed” as an interested customer when he received a telemarketing call, and called the company back when the initial phone call was disconnected. Johansen v. Nat’l Gas & Elec. LLC, No. 2:17-cv- 587, 2017 WL 6505959, at *3 (S.D. Ohio Dec. 20, 2017) Plaintiff acknowledged that he had no intention of engaging the company’s services, but played along “as he typically does” and “affirmatively took the steps necessary to seemingly enroll” with the company despite knowing that “no matter what happened, he would not receive [the company’s] services” because he deliberately provided the company with an incorrect address and an incorrect account number. (Id.) The Court found that Plaintiff’s admissions “cast serious doubts on his fitness to serve as an adequate class representative” and also “appear[ed] to undermine the viability of his cause of action under the TCPA.” (Id.) The district court in that case found that Plaintiff’s “deceptive conduct gave [the defendant] an objectively reasonable basis for believing that [plaintiff] had established a business relationship with [defendant].” (Id. at 4.)
Yeah that was long, but totally worth the read.
In light of this “deceptive” conduct by Johansen in past cases the Court was simply not willing to credit his claim that he did not submit the lead at issue to Efinancial. And I can’t blame it.
But JohansenLVI gets even better. That’s because its one of the rare cases to apply the TCPA’s DNC good faith affirmative defense at the MSJ Stage.
As a reminder, the DNC provisions of the TCPA–unlike the strict liability “regulated technology” sections–contain an affirmative defense for callers that have sound DNC practices and procedures and who made a call as a result of a good faith mistake. While this is a potent defense many Defendants forget to raise it for some reason (why?) and, even where it is raised Courts often will not credit such policies at the MSJ phase–they send it to the jury for a determination of the “reasonableness” of the procedure and the Defendant’s actions.
In JohansenLVI, however, the Court went for the jugular. It found Efinancial has a routine business practice of complying with the standards required by the safe harbor provision and had substantially complied with the purpose of the TCPA, “to protect consumers from the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements”, by only calling those who have requested a life insurance quote and consented to be called. And the Court found that owing to these procedures even if the claim was submitted fraudulently by a vendor Efinancial could not be liable because it mistakenly believed it was a calling a contenting customer.
What a ruling.
So Efinancial now finds its internal policies BLESSED as meeting TCPA standards by a federal judge–that is just an amazing ruling guys.
Some big take away here:
- Notwithstanding the crushing blow in Mantha, obtaining online consent remains viable in most courts–thank goodness;
- The antics of folks like Johansen who are setting up lawsuits by feigning interest in products and services have not gone unnoticed by some courts– and a properly supported summary judgment motion may hit home;
- Do NOT forget about the affirmative defense of policies and procedures in DNC cases–even calls to invalid leads might be forgiven where a solid written TCPA policy exists that is strictly complied with and trained;
- On the other hand, do NOT make the mistake of thinking you have a similar safeharbor when using prerecorded or ATDS calls to contact customers– you do not. And in this context lead fraud and wrong numbers may lead to strict liability and very serious problems for your organization.
Great work again to the Efinancial crew.