Everybody hates telemarketers. But here’s a guy one telemarketer really should not have called—Ted Frank, the founder of the Competitive Enterprise Institute’s Center for Class Action Fairness in Washington, D.C.
Frank is an expert in class action procedure and well-versed in the law that makes it illegal to auto-dial consumers without permission. Sure, he’s notorious for objecting to class action settlements. But after receiving a particularly annoying call asking about a vehicle he no longer owned, Frank was ready to turn plaintiff, filing a class action on Friday against the call-center operator.
The suit filed in the Eastern District of Missouri brings claims under the U.S. Telephone Consumer Protection Act, a law invoked in several suits where Frank has appeared as objector’s counsel.
Surely, he sees a bit of irony in all this? Not really, Frank said.
“I’ve always been on the consumer’s side,” he said. “I’m not against class actions, just the abuse of class actions.”
According to the complaint, filed by Chicago’s Edelson PC, a telemarketer named “Missy” from Auto Protection One called Frank’s cellphone on Feb. 21. Auto Protection One is the fictitious name for BMOCorp Inc., which provides aftermarket third-party auto warranties. The caller asked if he was “Theodore” who owned a 2012 Toyota Prius. Frank, who registered his cellphone number with the National Do Not Call Registry in 2006, started to question the telemarketer.
“When plaintiff informed the telemarketer that he had not provided any form of consent to receive the call and had no interest in the call, the caller laughed, and repeated the question about whether plaintiff owned a Prius,” the complaint says. “After plaintiff asked to speak with a supervisor, the telemarketer hung up on him.”
The complaint, which also names two of the company’s officers, seeks an injunction to stop BMOCorp from making similar calls, plus statutory damages. He filed the case on behalf of a class of thousands of individuals who received unsolicited calls from Auto Protection One, which uses an autodialer system.
Despite his work in the field of class actions, this is the first time he’s brought such a case on his own behalf. His case is among a growing number brought over unsolicited calls and faxes under the TCPA. But Frank insists his case is different from those he’s objected to, many of which involved “attenuated theories of liability, rather than people who are really abusing the statute,” he said.
“This is a case of a telemarketer who spoofs numbers, calls numbers on the do-not-call list without permission, and that’s their entire business model,” he said. “This is exactly in the heart of the TCPA.”
His attorney, Edelson founder Jay Edelson, has brought numerous high-profile class actions, including those under the TCPA. Frank said he’s investigated some of Edelson’s cases before. But he decided they “weren’t bad enough to object.”
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