Month: February 2016

Image Source: Consumers Union website https://consumersunion.org/end-robocalls/

Campaign to stop robocalls: Consumers Union has a plan to fight illegal robocalls

To date, more than 600,000 consumers from coast to coast signed the online petition on the Consumers Union website, sharing their stories, and fighting to end robocalls. Despite our efforts to sign up on the National Do Not Call Registry and pay extra fees to our phone companies to restrict access to our phone numbers, we all receive annoying and unwanted robocalls from telemarketing companies telling us we won a free trip to an exotic location, to others offering payday loans, always interrupting us from anything we would rather be doing than receiving these calls. Consumers Union is a nationwide entity with offices located in New York, Texas, Washington D.C., and California. The company’s mission is, “Unleashing the world-changing power of consumers.[i]

The law on robocalls:

  1. Without express written consent, many telemarketing calls are illegal;
  2. Political and nonprofit groups need consent to call mobile phone numbers;
  3. It is however, legal for political and nonprofits to call landline phone numbers;
  4. Emergency and health-related robocalls are legal to both landline and mobile numbers.

Robocalls are a big problem and disturb consumers who do all they can to prevent unwanted calls.

Robocalls are a compelling problem, causing significant irritation to consumers, including the consumer rights lawyers who also receive these annoying calls. It is one thing to come home to a digital answering machine or voicemail full off robocalls from telemarketers, but it is another to receive those calls on cell phones, especially when busy, driving, or doing anything else where being disturbed is a problem. Many consumers elect not to give out their cell phone number, and others give to everyone and use it for business. In either scenario, most of us program saved numbers and contacts in our phones and we can be distracted by numbers we do not recognize.

New technology allows the robocallers to mask and hide their source location, so we cannot track them down. Similar technologies are used to assign area codes to phone numbers (spoof numbers), and it might appear to be a local call coming in, when it may actually be a computer calling you from overseas in an unknown location. If you think you can call the number back and have a word with them, good luck. Being annoyed is one thing, being scammed is another. According to the Consumer’s Union, “telephone scammers target vulnerable consumers, including the elderly. Consumers lost some $350 million to scams in 2011, according to the latest available FTC data.[ii]

Consumers Union calls on the phone companies to reduce the number of robocalls.

The technology exists but it not always used where it could be effective to the benefit of consumers. In Canada there is a service called Primus Telemarketing Guard, which identifies and intercepts telemarketing phone calls, similar to the SPAM filters we use to protect us from online viruses and emails posing security risks. Why can’t U.S. landline providers offer a similar technology? There is a service offered by Internet-based phone providers, called Nomorobo, however the phone companies do not directly offer the service to customers. Cell phone users can download and purchase apps that block telemarketing calls, but they are not offered directly by the service providers.

Consumers Union, collecting petitioners from all over the U.S., to present to phone companies, telling them that consumers want action and services and technologies directly from providers, to help combat robocalls and consumer fraud. Consumers Union states, “The FCC has authorized phone companies to use blocking technologies. Now we’re harnessing your outrage to demand the phone companies offer free, effective call-blocking solutions. And we’ll fight every effort to expand the use of robocalls to cell phones.”

Spreading the word among other consumers is helpful, in drawing awareness to problems and solutions to help protect consumers from unwanted communication, telemarketing and fraud schemes.

When you sign the online petition on the Consumers Union website, you receive an email encouraging you to share the campaign with more people, as Consumers Union states, “As individuals – filing complaints with the FTC, or trying to block unwanted calls on our own – we can be ignored. Together, we can be powerful.[iii]

DISCLAIMER: The Zamparo Law Group has no affiliation with Consumers Union, and this article is not an endorsement or makes any claim to the propriety of the company or its owners or affiliates. Having said that, the Consumers Union and their petition has reached news desks and has achieved considerable attention. The Zamparo Law Group, advocating for consumer rights, reports and shares consumer protection news.

The Zamparo Law Group can help consumers fight against robocallers and win in court, individually and in class action lawsuits.

The Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law.

To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.

 

[i] ConsumersUnion.org, About, Mission

[ii] ConsumersUnion.org, End Robocalls, Problems

[iii] Consumers Union autoreply email in response to signing petition, subject line: Can you share EndRobocalls.org with your network?

Image Source: Consumers Union website https://consumersunion.org/end-robocalls/

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Image Source: Consumer Affairs, Fed Action Halts Debt Relief Marketing Operation. http://bit.ly/1mKzYA2

Debt relief companies posing as law firms, leader of fraud faces 20 years

The United States Department of Justice (DOJ) Consumer Protection Branch frequently announces news and alerts to warn consumers of fraudulent business operations. Investigations and prosecutions of wrongdoers can involve federal, state and local agencies working together to share information and bring individuals to justice. In consumer fraud cases there may be criminal and civil penalties and fines imposed on organizations and their owners who make false promises to consumers and take their money, often without providing any services, or certainly not what was offered to the consumer. Certain consumers are specifically targeted based on their age, race, and income bracket. When something seems too good to be true, it may be. Spotting and reporting consumer fraud is an important first step in stopping scammers and preventing others from trying defraud consumers.

Scammers masquerading as debt relief companies are common, and this one falsely claimed to be a law firms and companies run by lawyers.

A California man recently pleaded guilty to allegations of conspiracy to commit mail and wire fraud in the operation of companies, Nelson Gamble & Associates and Jackson Hunter Morris & Knight LLP. The DOJ press release reports that, “Nelson and his employees portrayed the debt relief companies as law firms and attorney-based companies that would negotiate favorable settlements with creditors. Clients made monthly payments expecting the money to go toward settlements. Nelson and his co-conspirators instead took at least 15 percent of the total debt as company fees, within the first six months of payments going almost entirely toward undisclosed up-front fees.[i]

The DOJ and the U.S. Postal Inspection Service[ii] (USPIS) spokespersons commented on their efforts to protect consumers against fraud schemes: “This scheme victimized people already in financial distress…the Justice Department is committed to protecting consumers, particularly those who are vulnerable to fraud schemes designed to prey upon people already in perilous economic conditions,” stated U.S. Attorney Eileen M. Decker; “The U.S. Postal Inspection Service will continue to vigorously pursue those who use our nation’s mail system to commit fraud or other illegal activity,” said Acting Inspector in Charge Daniel Brubaker.[iii]

The Federal Trade Commission (FTC) filed its civil case against Nelson and his companies in September 2012 and the case was settled by agreement in August 2013. Information obtained in investigations showed Nelson operated his scheme from February 2010 through September 2012, for which he faces a potential 20-year prison sentence.[iv] While the DOJ and FTC news releases do not mention any privately filed civil complaints against Nelson, there may be several consumer protection laws he and his group violated, for which the individuals filing private lawsuits can collect actual damages, statutory damages and private attorney’s fees.

Make note of common telemarketing and sales pitches with amazing claims.

In its consumer protection news report, the FTC discussed how Nelson and his group robo-called phone numbers listed on the National Do Not Call Registry in attempting to sell their debt relief services. The FTC complaint cites language in a website operated by Nelson, “Nelson Gamble works with the utmost diligence to obtain the best possible outcome for our clients, with over $90 million of debt settled in the past 12 months – and over $800 million since our inception,” using “proven tactical methods to settle debt by 50% to 80%…in three years or less.[v]” Nelson and his cohorts likely assumed that most of the consumers they were targeting would have access or ideas on how to research the claims made by these companies.

Make the call to report potential crimes and consumer protection violations to stop the scammers.

If you receive an offer from a company that sounds too good to be true, do some research. If a debt relief company is able to knock out 50 to 80 percent of your debt, are all bankruptcy lawyers going out of business? If you believe you are communicating with a potentially fraudulent company trying to swindle you, tell someone. The next person they call could be your elderly mother or another family member, friend or neighbor; there is no telling who is on the robo-call list.

The Zamparo Law Group receives phone calls and emails from consumers who believe their rights and the laws were violated by telemarketers and debt-relief-type companies that make claims that sound too good to be true. The attorneys at the Zamparo Law Group can tell you whether you have a legal right of action and whether higher federal, state or local authorities and agencies may be appropriate to contact. If you have a case, the Zamparo Law Group can get to work advocating for your consumer rights.

The Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law.

To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.

 

[i] U.S. Department of Justice, Office of Public Affairs, California Man Operating Phone Room in Debt Relief Scam Pleads Guilty to Defrauding Consumers, Release Date Feb. 1, 2016.

[ii] The U.S. Postal Inspection Service investigates the use of the mail system to commit fraud or other illegal activities (the U.S. mail was used in connection with this fraud).

[iii] See DOJ press release, HNi above.

[iv] Federal Trade Commission, Cases and Proceedings, Nelson Gamble & Associates LLC, et al.

[v] See HNiv above.

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Proposed Legislation: The Restoring Statutory Rights Act

Senators Patrick Leahy (D-Vt.) and Al Franken (D-Minn.) introduced new law to correct the unfair impact of forced arbitration clauses on consumers. There are several reasons consumers are gravely disadvantaged when large companies and service providers easily win in arbitration. Forced arbitration agreements are derived in concept from the Federal Arbitration Act (FAA), enacted in 1925. The FAA was not originally intended to be used to compel consumers to settle disputes in arbitration when they would otherwise have access to the courts. The new law, the Restoring Statutory Rights Act, would protect consumers and change the course of the law. This legislation is timely and many consumer rights advocates are upset by the recent U.S. Supreme Court (SCOTUS) decisions upholding forced arbitration agreements imposed on consumers.

Consumers are significantly disadvantaged by forced arbitration clauses.

Forced arbitration clauses are found in the fine print of contracts, in click through agreements online, and in the literature sometimes included in a consumer’s monthly billing statement. In many cases, the consumer is never asked whether they voluntarily consent to having any disputes settled in binding arbitration. Simply by continuing to use a service or make payments on a home or car, the consumer may be consenting to the arbitration clause. Most consumers are unaware that they are limited in arbitration and they will never see a courtroom or judge, even if they have a significant complaint against the lender or service provider seeking to collect a disputed amount of money. In one case we wrote about in Arbitration clauses prevent consumers from suing in court, but might not end the fight, a consumer was sued and lost in arbitration over a debt he did not owe.

Adding another layer of disadvantage on the consumer, the companies writing forced arbitration clauses into their consumer agreements are also the ones to select the panel of arbitrators. There are limits on the rules of law and procedure in arbitration. There is no jury in arbitration, no elected or appointed judge, simply a panel of arbitrators who are not necessarily lawyers or people with legal experience.

The Federal Arbitration Act was never intended to force individual consumers into arbitration.

The FAA statute was written to help companies with equal bargaining power an opportunity to use voluntary arbitration for dispute resolution.[i] The law was not written to compel individual consumers to arbitration, especially when they are forced into arbitration by a clause in the fine print they never read. Recent SCOTUS decisions interpreted the FAA statute as applying to individual consumers who are forced to settle disputes in arbitration and have no right to go to court with their own claims against consumer protection violations or other wrongdoing by the company suing them.

The Restoring Statutory Rights Act could protect consumers from binding arbitration.

Congress is asked to pass the Restoring Statutory Rights Act[ii] to redirect a legal path going in the wrong direction, in the opinion of its authors and supporters.[iii] Lobbying for the necessary changes in the law to protect consumers from abusive and unfair collection practices and lawsuits, there will likely be strong support for this proposed legislation among individual consumers and small business owners. The new law would directly correct some of the current problems and inequities in arbitration.

  1. The Restoring Statutory Rights Act would make claims by individuals and small businesses, arising out of violations of state or federal law or constitution, exempt from the FAA statute, allowing these claims to proceed in a traditional court of law.
  2. State and federal courts can apply the laws in their jurisdictions to contract interpretations, arbitration clauses and challenges to the enforceability of forced arbitration clauses, if the Restoring Statutory Rights Act becomes law.
  3. The enforceability of an arbitration clause would be a decision for the court, not the arbitrators, under the Restoring Statutory Rights Act.

U.S. CongressContacting your U.S. Senator to ask them to support the Restoring Statutory Rights Act is a step you can take to help fight back against forced arbitration.

The Zamparo Law Group follows legislation and legal decisions affecting consumer rights. As there are new developments that could affect consumers, we will share the news on our social media pages.

The Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law.

To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.

 

[i] The National Law Review, Federal Arbitration Act Trumps State Law Again, Jan. 14, 2016.

[ii] U.S. Senate, Restoring Statutory Rights and Interests of the States Act of 2016.

[iii] The Hill, New bill aims to restore rights lost in forced arbitration clauses, by Lisa Gilbert, contributor, and Sonia Gill. Feb. 11, 2016.

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Telephone Consumer Protection Act in news and courts

Victoria’s Secret and the United States Supreme Court (“SCOTUS”) made recent news in connection with the violation and litigation of the Telephone Consumer Protection Act (“TCPA”). The TCPA is one of the lesser-known federal consumer rights laws. Many consumers know they have rights when it comes to phone calls and text messages, beyond a do-not-call list. In fact, consumer’s rights are easy to learn and violations are easy to spot when you know what to look for. The TCPA restricts telemarketing calls and the use of automatic dialing systems, prerecorded voice messages, text messages and faxes. The restrictions protect consumers from unsolicited advertisements and individuals with whom we do not otherwise have an established business relationship. Violations of the TCPA are often litigated in class action lawsuits and a recent SCOTUS opinion better protects plaintiff consumers.

Victoria’s Secret customers may be more cautious when agreeing to receive the company’s ad texts.

The TCPA restricts how a company such as a clothing retailer may contact and communicate by text messaging. Consider the variety of occasions in which your favorite store could obtain, verify and retain your phone number. The click-wrap text at a point-of-sale purchase could include language in which you agree to receive a single or limited number of text messages to receive offers and information. What happens when you opt-in and consent to receive special deal texts, and you get more than you expected?

Victoria’s Secret is the named defendant in a proposed class action lawsuit for over texting. The plaintiff, a man from California alleges Victoria’s Secret violated the TCPA when it sent him just short of 100 text messages in one day. The opt-in message agreement the plaintiff entered into with the retailer was to receive no more than six text messages a month. The automated telephone dialing system used by Victoria’s Secret sent the plaintiff 97 text messages on one day in November 2015.[i]

The restrictions of the TCPA apply to a text messaging ad campaign.

The law generally prohibits phone calls to people, made by automatic telephone dialing systems or an artificial or prerecorded voice. There is an exception to the TCPA, if the call is placed for an emergency purpose or the caller has the prior express consent to initiate what some call “robo-calls.” The prior express consent element of the exception may be derived from the underlying existing relationship with the caller, such as between bank and credit card holder or cell phone provider and customer. In various communications sent to us by our service providers and banks, we might find fine print, which says we consent to receiving text messages when we agree to an offer or simply continue using the service.[ii]

Going beyond the limits of the consumer’s consent may violate the protective restrictions of the TCPA. The California plaintiff has a right to a private action against Victoria’s Secret and may be able to recover for any actual monetary loss in connection with the TCPA violation, as well as a statutory amount of $500 for each violation. If the plaintiff can prove that Victoria’s Secret willfully or knowingly violated their opt-in agreement and the TCPA, the court may award triple the damage award.[iii]

Class action litigation in TCPA cases and the recent SCOTUS landscape opinion.

SCOTUS
Supreme Court of the U.S.

The U.S. Navy contracted with a marketing company to send text messages to 18 to 24-year-olds who opted-in to receiving text messages. The company allegedly exceeded the scope of its op-in list of recipients and messages were sent to unintended recipients, well beyond the recipient age range limits.

In the Navy case, a full settlement offer was made to a named plaintiff, and the SCOTUS ruled that the defendants cannot rely on a settlement offer to one plaintiff, to argue that the claims of that plaintiff are then moot, because of the settlement offer, and seek dismissal of those claims. The SCOTUS relied on contract law principals to conclude that unaccepted settlement offers and unaccepted offers of judgment do not deprive a plaintiff of their interest in a lawsuit.[iv]

Companies defending against TCPA class action suits could previously expect to attempt to defeat a subject class action by offering a full settlement to the class representative. Under the new SCOTUS ruling, an unaccepted settlement offer will not prevent a consumer plaintiff from continuing to prosecute their claims against the TCPA violator, in individual and class action litigation.

Telemarketers using auto-dialers to call and text you their advertisements expect you to do nothing when they violate the TCPA. Prove them wrong. The Zamparo Law Group can help.

Zamparo Law GroupThe Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs harmed by telemarketers violating the TCPA and other similar federal and state laws. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law and instead, use illegal tactics to market their products and services.

To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.

 

[i] Data Privacy and Security Insider, Victoria’s Secret hit with TCPA class action for text messages, by Kathryn Rattigan, Feb. 2, 2016.

[ii] Telephone Consumer Protection Act 47 U.S.C. § 227 (b)(1), Restrictions on use of Automated Telephone Equipment

[iii] Telephone Consumer Protection Act 47 U.S.C. § 227 (c)(5), Private Right of Action

[iv] U.S. Supreme Court Campbell-Ewald Co. v. Gomez, No. 15-857 Decided January 20, 2016.

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