Well the TCPA class actions continue to pour in post-Facebook–but they are all focused on DNC and pre-recorded call claims.

Notably, purchased-lead scenarios continue to be an issue. But so too are re-marketing campaigns–efforts to market to a former lead when they re-enter the market (such as by making a credit inquiry, searching interest rates or re-visiting a website.)

For instance, in a new class action complaint filed yesterday in Florida, a mortgage company is alleged to have made re-marketing calls to an aged lead when the Plaintiff–who had previously been in the market–visited the mortgage lender’s website to check rates.

According to Plaintiff:

Plaintiff visited what she believes may have been RoyalUnitedMortgage.com but did not fill out any forms or provide her phone number on their website. Plaintiff quickly closed her internet browser when she saw the name Royal United Mortgage come up on her screen.

That same morning on March 9, 2021 at 7:05 AM, Plaintiff received an unsolicited telemarketing call from Royal United from 317-936-3503. Plaintiff answered this call and a Royal United Mortgage employee solicited Royal United services to the Plaintiff. The Plaintiff interrupted the employee and said she was not interested in speaking to anyone from Royal United and demanded that Royal United stop calling her.

But the calls continued.

What is unique about this situation is that the very first call to the consumer upon her visiting the website might be at issue here– the inquiry period from her original time in the market appears to have expired. So the cold call solicitation to the consumer when the consumer merely visited the website is likely a DNC violation (if the allegations are true.)

This is important because if (big if) Defendant engaged in the practice of cold calling aged leads anytime a consumer visited the website that might be a certificable class. (Whereas merely mistakenly continuing to call a consumer–assuming that is against policy–would likely not be a certifiable class.)

It is very very important for companies to keep the DNC rules in mind post-Facebook. Yes you can use more technology to call people without consent, but you still can’t call residential cell phones on the DNC without an EBR or an inquiry. That means you need to be very thoughtful about what sort of re-marketing programs you want to use with aged leads and how to deploy interactive-call or text campaigns without consent (if at all.)

More broadly, the new Complaint reminds everyone that their online reputation matters. This Complaint is filled with inflammatory remarks supposedly made by anonymous message board dwellers. Here’s a couple:

• Just called me 5 TIMES IN less than 30 minutes!! Waking my entire family up at 6:21AM! I NEVER asked to be called.”

• “I just filed a complaint with the FCC after receiving 6 calls in a row. The first two I did not answer. I told the representative Ryan to take me off the list and he thought it would be a good business practice to have 4 of his coworkers all call back to back at 10am on a Sunday morning. After filing the FCC complaint I checked my email and now they have sent 6 separate emails saying “oh even  though you have asked us not to call lets talk by email” so now I will be pursuing legal action.”

• “High pressure sales tactics. The strategy seems to be, call you nonstop as soon as you inquire about rates, waste as much of your time as possible, trash other lenders, then hit you with MUCH higher closing costs than initially quoted.

Notice the claim about calling outside of telemarketing hours. Again you must be strict with your business rules here.

And while–in my opinion–these sorts of anonymous hearsay statements should be stricken from the complaint as non-probative and unlikely to lead to any admissible evidence (i.e. scandalous impertinent matter under 12(f)) you really don’t want to see these things in a Complaint–and you know Plaintiffs lawyers are always trolling for this sort of stuff. So keep your practices consumer-friendly folks.

Complaint is here: Peterssen complaint