TCPAWORLD AFTERDARK: One Year a Baroness, Plus Kohl’s Sued in a TCPA Class Action that Shows Everything That’s Wrong with the TCPA

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So earlier this week we celebrated Brittany–i.e. the Baroness– reaching one full year working for me.

Amazing how fast the time passes. Yet it is amazing how big an impact she has had so quickly.

Multiple huge wins. And everyone feels like they know her already.

Plus she’s a nationally-recognized “go to thought leader.”

Remarkable.

Even more remarkable is her attitude:

“One year down.. forever to go.”

-Brittany Andres on working for the Czar

I love that.

She exudes such loyalty and gratitude. Simply a perfect person to build around. So so fortunate to have had her at my side as we embarked on this incredible adventure– we started the firm together for goodness sake!

Just amazing.

#troutmanaminforever

In other news… check out this new filing against Kohl’s. Kohl’s Complaint

Guy signs up for Kohl’s messages. Allegedly decides he does not want to receive them anymore.

So what does he do?

In May 2022, “Plaintiff sent a written correspondence to Defendant (1) stating he no longer wished to receive telephonic communications from Defendant, including text messages; and (2) requesting a copy of Defendant’s Do Not Call Policy.”

Texts continue.

In August 2022, “frustrated with Defendant’s unwanted text messages, Plaintiff sent a second written request to Defendant (1) again stating he no longer wished to receive telephonic communications from Defendant, including text messages; and (2) again requesting a copy of Defendant’s Do Not Call Policy.”

Texts continue.

In October 2022, disturbed by Defendant’s continuing text messages, Plaintiff sent a third written request to Defendant (1) again stating he no longer wished to receive telephonic communications from Defendant, including text messages; and (2) again requesting a copy of Defendant’s Do Not Call Policy.

“Astonishingly,” texts continue.

So he files a class action seeking millions from Kohl’s.

I mean, come on.

The only actually astonishing thing here is that the guy didn’t just text “stop” but instead decided to CLEARLY set up a TCPA lawsuit by evading the “stop” functionality and sending a letter to–who knows where.

Suits like this are such scams in my opinion. Pains me that Kohl’s has to deal with this nonsense.

Plaintiff wants to represent a class of: All individuals in the United States (1) to whom Defendant, or a third party acting on Defendant’s behalf, sent, or caused to be sent, a text message; (2) directed to a cellular telephone number; (3) that is registered on the National DoNot-Call Registry; (4) in which the purpose of the text was to market Defendant’s products or merchandise; (5) without the individual’s written consent; (6) within the four years preceding the date of the original complaint through the date of class certification

Notice this is a “no consent” class and not a revocation class so I dont even think the guy is an adequate rep. What a mess.

One interesting thing to pay attention to though is that Plaintiff–a Virginia resident–is suing Kohl’s in Wisconsin under Virginia law.

Specifically Virginia law requires a texter communicating for marketing purposes to disclose the name of the individual sending a text. Plaintiff claims Kohl’s violated §59.1-512 of the VTPPA, which provides:

A telephone solicitor who makes a telephone solicitation call shall identify
himself by his first and last names and the name of the person on whose behalf
the telephone solicitation call is being made promptly upon making contact with
the called person.

Will be fascinating to see how the Court deals with this provision–as there is no real case law on the subject yet.

We’ll keep an eye on this.

And you keep an eye on Brittany. She’s amazing.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

5 Comments

  1. OK Eric don’t trouble yourself, its late, well after dark anyway, but here’s KOHL’s policy:

    “What if I don’t want to receive any more SMS promotional messages?

    To stop receiving only Kohl’s Promos & Alerts, simply text STOP to the short code KOHLS (56457),email technical.help@kohls.com or call 866-887-8884. After doing so, you will receive confirmation of your opt-out, and thereafter, you will no longer receive any Kohl’s messages.”

    So clearly he blew that. But then there’s still this:

    53. Pursuant to 47 CFR 64.1200(e)(2)(i), Defendant is required to have a written policy, available upon demand, for maintaining a do-not-call policy. 47 C.F.R. 64.1200(e)(2)(i).

    54. Defendant violated 47 CFR 64.1200(e)(2)(i) by failing to deliver its written Do-Not-Call policy to Plaintiff despite Plaintiff’s multiple demands.

    55. As set forth above, Plaintiff demanded Defendant’s Do-Not-Call policy in writing on three separate occasions.

    56. Despite Plaintiff providing Defendant with multiple opportunities to provide its Do-Not-Call policy, Defendant failed to provide Plaintiff with the same.

    Reply

  2. In all ventures human, there are good actors and there are bad actors. And, this is true with both calling parties (telemarketers and sellers) and called parties (consumers). Yet, you always seems to take the position that the consumer is the bad guy whenever they pursue their rights. \

    What factual evidence do you have that this guy didn’t a STOP message? How do you know that the letters he sent went to “who knows where”? Let us assume that he sent the letters to the CEO — after all, a snowball rolls downhill! If Kohl’s received a written demand in May, why didn’t they do something about it by August? And then a second demand in August, and they still did nothing by October. Thats FIVE months from May to October, and THREE letters. Obviously, Kohl’s did not care.

    How about day-to-day TCPA cases where a consumer makes a “do not call” demand directly to the telemarketer and makes a “send me copy of your policy” to the telemarketer and neither of those demands are heeded. So, the consumer sues. Once again, you come out criticizing the consumer. (Blame the victim!)

    My telephone number is on the NDNCR. Yet, despite this, I receive (unwelcome) telemarketing calls. More often than not, when I make request to the calling telemarketer to “do not call” I get hung up upon usually with a gratuitous four-letter word or two being uttered at me… and a few days later, I still get called by the same telemarketer. You, of course, would say that I am at fault because I somehow opted in, and I certainly did not do enough to stop the calls. (Blame the victim!)

    With lead fraud being rampant, and consumers receiving (by your own admission here on TCPAWorld) over a BILLION illegal calls a month (thats about 3 calls for every man, woman, and child in the USA per month) as a result of that rampant fraud, it seems that you would be more respectfully in your treatment of the victims (the consumers) of your beloved industry (the telemarketers and sellers). Instead, you condemn the consumers and call them “bad.” (Blame the victim!)

    You have your fair share of telemarketer clients whom you represent that are scum-of-the-earth. But, you continue to ridicule and blame and the victim. YOU are disgusting!

    Reply

      1. No scumbag repping, eh?!?!

        Didn’t you get Wells Fargo off the hook way back when (against serial litigant that confessed to using ‘a shoebox full of cellphones’ to aid her quest to find robocallers).

        I stand corrected if I’m off on this one, but when I tried to access the cases (to name her) I was overwhelmed with the 160 cases filed against Wells Fargo, listing you, The Czar as counsel, – the large majority of which are TCPA cases!!

        I will venture to go as far as saying since you primarily condoned and represented them, we ALL know what Wells Fargo later went on to do.

        Yes thanks to being emboldened to recklessly break the law(s) thanks to YOU, The Czar, Senor Troutman.

        Yes that Wells Fargo who totally breached all fiduciary responsibility by OPENING accts without permission and/of knowledge of said customers!!!

        Go ahead explain just how WF are not Scumbags of the highest degree, I dare you…

        1- https://www.justice.gov/opa/pr/wells-fargo-agrees-pay-3-billion-resolve-criminal-and-civil-investigations-sales-practices

        2- https://www.reuters.com/legal/former-wells-fargo-executive-pleads-guilty-obstructing-bank-examination-fined-17-2023-03-15/

        3- https://www.thestreet.com/banking/zelle-scam-wells-fargo

        Just how do you sleep at night knowing your paid services fostered such an atmosphere of corporate dirty dealing and outright despicable fraudulent scam(s) of the highest order!!??

        But of course, in your filter bubble ALL 160 plaintiffs were all manufacturing suits – give me a a break bro!!

        “Im the Czar. I don’t represent scumbags.”

        Just keep repeating that each morning in the mirror…

      2. I think general populace and you have two very different definitions for the word scumbag.

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