iSerial plaintiff Mark Dobronski filed a massive individual lawsuit against Tobias & Associates Inc. (T&A), Fidelity Life Association, Great Western Insurance Company, AND three individuals at T&A (the CEO and two employees).
Now there is A LOT going on in this lawsuit.
Canary Trap
First off, I’m sure some of you clicked on this to find out what is a TCPA “canary trap.” Well, Dobronski is TCPAWorld famous for these. It is essentially where you give a caller a fake name and information to determine whether future calls are from that same entity. Previously, this technique actually precluded him from the possibility of treble damages under the TCPA. But as we see here, that doesn’t deter him from continuing use of this tactic – even in the same court.
Plaintiff’s Complaint gives a detailed analysis of why he uses this method.
He claims that the insurance companies use offshore lead providers outside of the TCPA’s grasp in order to get what they call “marks” or, as we know them, leads. When these lead generators or “ropers” gets a “mark,” they will then transfer them to an agent who will attempt to close the sale.
He claims this is likely the stage where identifying information from the calls source might be learned. He goes on to explain that when these “ropers” have consumer on the phone that will ultimately fail to be a “mark” they terminate the call without warning.
Plaintiff claims that these insurance companies “support and facilitate” the scheme by providing agents with access to their computer system for pricing, ability to enter data into the insurance companies’ systems, and the authority to sue the insurance companies trade name and trademark or service mark.
Alleged Damages
Now, let’s talk about the potential cost here, and exactly why the TCPA is so dangerous even with without class action status.
The 12 calls alleged here may cost these defendants collectively up to $129,000 in damages!
The lawsuit gives 6 different alleged violations of the TCPA for each and every one of the 12 calls. Without treble damages this is still collectively $36,000 worth of damages, and with treble damages this makes up $108,000 of the max value of the potential damage award.
Now, mind you, three other statutes were allegedly violated:
1) Michigan Telephone Companies as Common Carriers Act;
2) Michigan Home Solicitation Sales Act;
3) Florida Telephone Solicitation Law.
But those damages are collectively maxed at $21,000.
Huge difference.
FTSA in Michigan
Why does a Michigan plaintiff get to use the FTSA? Well, I know we talk about personal jurisdiction regarding those suits where the plaintiff is a Florida resident and the defendant is an out-of-state entity directing calls to Florida area codes. Here, we have a Florida business (T&A) who allegedly made a call to an out of state Plaintiff in violation of the FTSA. Now just to be clear, Plaintiff never alleges he is in Florida. All these calls went to Michigan.
Well, the FTSA applies to those telephone solicitors who are “doing business” in the state of Florida which the FTSA makes clear includes both “businesses who conduct telephonic sales calls from a location in Florida or from other states or nations to consumers located in Florida.”
Simple enough, but this also shows how dangerous the FTSA is for those doing outbound sales in Florida. They can easily get hit with a TCPA and FTSA claim just by virtue of “doing business” in Florida because a TCPA claim does not preempt a FTSA claim.
Individuals
T&A’s CEO and two of its employees were personally named in this suit.
The CEO of T&A is alleged to have “personally authorized, directly[] had control over, and participated in the activities of T&A, including its telemarketing activities (…) and at all times had the ability to cease such activities.”
As to the agents/employees, Plaintiff alleges that they are “well aware that the automatic telephone dialing platforms and telemarketing activities which it directs is agents to utilize are illegal and violate the TCPA.”
The 12 Alleged Calls
All calls here are alleged to use the same pre-recorded message and to use this “mark” process though interactive voice response systems. Plaintiff alleges the process employed was follows:
1) a pre-recorded call utilizing an interactive voice response system asks the called party list of “pre-qualification” questions;
2a) if the called party does not meet the “pre-qualification criteria” are hung up on;
2b) if they meet the criteria, they are then automatically transferred to a “senior verifier” who then asks additional questions as what Plaintiff calls a “verification process;”
3a) if they refuse to answer or if they fail to meet the criteria here, they are suddenly hung up on;
3b) if they pass the verification process they are then transferred to a licensed insurance agent who then attempts to sell them a final expense life insurance policy.
Plaintiff claims that after 11 failed attempts he finally got through to a licensed insurance agent who solicited him to buy life insurance by Fidelity and Western.
He further alleges that the agent would never really identify his company and would just use identify it as “The Enrollment Center,” and that when he called the caller back for each of the 12 calls, it was a disconnected number or, in one case, a personal number claiming to have been “spoofed.”
Also, these calls allegedly did not have the requisite caller ID as required under the TCPA, FTSA, MHSSA, and MTCCCA.
So I’ll leave you with this…although the TCPA seems to pack the most heat in this particular lawsuit, it is still important to stay up to date on your state level statutes!
