Whether a consumer is inadequate to serve as a TCPA class representative when, in order to identify the company bankrolling an illegal telemarketing campaign, the consumer feigns interest in the telemarketer’s offer.
The Telephone Consumer Protection Act (TCPA) protects consumers from several types of unwanted calls, including calls made after placing a residential number on the National Do Not Call Registry. The TCPA may be enforced through a private right of action—meaning consumers can sue companies directly rather than having to work through the government to seek relief. In class action cases, an individual cannot represent the class if the individual’s claims are atypical or if they are otherwise inadequate to serve as representative of the class.
Ken Johansen placed his personal phone number on the Do Not Call Registry. When illegally contacted by a telemarketer with a vacation offer, Johansen feigned interest in the offer because he knew he would need to identify the company who had hired the telemarketer in order to sue that company in a TCPA class action case.
Companies regularly seek to evade TCPA liability by hiring telemarketers to mass-dial consumers and make offers without naming the company who hired them. Consequently, consumers like Johansen need to be able to pierce through the screen created by the use of a telemarketing firm if consumers are to bring cases against TCPA violators.
The U.S. District Court for the Southern District of Florida determined that Johansen could not serve as a class representative for consumer victims of illegal telemarketing calls because of his pretextual behavior. The court’s ruling characterized Johansen as “deceptive” and “dishonest” in attempting to unmask the company behind the illegal calls he received.
EPIC and the National Consumer Law Center (NCLC) filed an amicus brief arguing that consumers receiving illegal calls must be able to feign interest in a telemarketer’s offerings to discover who is responsible for the illegal call campaign. The efficacy of the TCPA’s private right of action would be severely diminished if consumers had to choose between serving as a class representative or identifying the source of the illegal call campaign. Congress created a private right of action to ensure the TCPA will be vigorously enforced even if government regulators fail to prioritize enforcement. Congress did not intend for consumer enforcement to be frustrated by companies that both prove unwilling to diligently oversee their telemarketing campaigns and obscure their involvement in illegal call campaigns through telemarketing scripts that fail to disclose their sponsors.