FANCY: High-End Retailer Neiman Marcus Stuck in Low-End FTSA Suit

3 Comments

Well even the hoity toity folks over at Neiman Marcus have to deal with the FTSA.

It seems like hundreds of these cases have been brought against mostly-small mom-and-pop retailers trying to communicate with their clients. But it turns out the big boys aren’t exempt from being sued here, although I have to say the theory being asserted is really bad.

You all may remember a while back I commented on the dreadful theory that sending a text from a shortcode automatically violates the FTSA because you can’t call back on the number that sent the text.

SO WHAT’S UP WITH ALL THESE “I CAN’T CALL BACK THE NUMBER THAT TEXTED ME” CASES: The Good, the Bad, and the Ugly of the New (Kinda Dumb) FTSA and OTSA Theory Clogging Court Dockets…

Awful.

Well that’s the theory asserted against Neiman Marcus. They did nothing wrong–they just sent a text from a number you couldn’t call back on.

The case is filed in state court and given the standing rules in Florida right now I don’t think the case is going to last too long. And it is brought by these guys at Social Justice Law Collective who just won’t seem to give up these terrible cases.

Still its nice to see even the premium retailers have to fend off these dumb cases once in a while.

Complaint here: NM Complaint

With love.

For the interested, we’ll be breaking down the latest on state law mini-TCPA and data privacy issues at the MASSIVELY AWESOME Law Conference of Champions next month!!!

Check out the agenda here.

Chat soon.

Discover more from TCPAWorld

Subscribe to get the latest posts sent to your email.

Categories:

Published by Eric "Czar" 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.

3 Comments

  1. “They did nothing wrong.” Said every defense attorney ever. It’s cute, but false. 47 CFR 64.1601(e)(1) provides that “Any person or entity that engages in telemarketing, as defined in section 64.1200(f)(10) must transmit caller identification information” and that “caller identification information must include either CPN or ANI, and, when available by the telemarketer’s carrier, the name of the telemarketer…The telephone number so provided must permit any individual to make a do-not-call request during regular business hours.” Texts are including within the meaning of calls under 64.1200. Come on, Czar.

    Reply

    1. In defense of the Czar, he was referring to the Florida Telemarketing Sales Act, which uses the term “telephone number.” But, you are 100 percent correct about 47 CFR 64.1601(e). The trouble is, some courts say there IS a private right of action, and some courts say there is NOT a private right of action for violating 47 CFR 64.1601(e). The Czar, of course, will tell you there is NO private right of action for violating 47 CFR 64.1601(e), and thus many (read: around 90+ percent) of telemarketing calls utilize spoofed Caller ID information. Of course, the Czar, being the honest and ethical attorney that he is, would never counsel his clients to violate any law or regulation.

      Reply

  2. Hey, Czar, I was unaware that Wikipedia is considered a reliable source. I seem to recall that a couple of the Circuits and a number of District Courts deem Wikipedia to be of “questionable authority” and “unreliable”. Instead of relying upon Wikipedia, perhaps you should consider what the FCC says at 47 CFR 64.1600, and at 47 CFR Title 52 (Numbering). Put bluntly, not all telephone numbers are 10 digits. (Some obvious examples: 411, 611, 911, 988). I would think that the FCC is a far more reliable source and binding authority over Wikipedia.

    Reply

Leave a Reply