Legal reform advocates think they’ve found a prime example of plaintiffs attorneys “gaming the system” to collect big awards under the Telephone Consumer Protection Act.
Court filings in a Connecticut lawsuit against Lemberg Law by one of its former partners include allegations of deceptive practices used to find new clients
Using data it pays to get from PrivacyStar — a cell phone application designed to identify who is calling and why, and offer the recipient of the unwanted call a chance to file a complaint with the Federal Trade Commission — the firm allegedly files TCPA claims against businesses, sometimes on behalf of consumers who don’t know they’re doing it.
The app is only available for Android devices and is free. Its terms and policies allow it to collect personal information, such as the user’s name, contact and credit card details, preferences and the unique mobile device identifier, according to a 2014 Dallas Morning News report.
The lawsuit, filed by Tammy Hussin, claims the app provided names and numbers of people who used PrivacyStar to file a complaint.
Travis Akin, executive director of Illinois Lawsuit Abuse Watch, told the Record the alleged actions appear to fly in the face of the app’s purpose.
“The whole point of an app that is designed to get rid of harassing phone calls is to protect a person’s privacy,” Akin said. “If these allegations are true, this is a big-time violation of people’s privacy. You’re blocking your information from one party only to give that information to another party. That’s deceptive — it’s wrong.”
Consumers should know that their online activity is logged and used for commercial purposes, he said. But this is an example of a service that, perhaps, should be different.
The TCPA was passed 25 years ago to protect consumers from telemarketing calls. The FTC created a "Do Not Call" registry and businesses that violate the law can end up in an expensive legal battle. Groups on both sides want Congress to reform the aged legislation. Consumer advocates say millions of unwanted calls continue to be reported. Meanwhile, businesses want protection from excessive litigation. Many say these kinds of lawsuits have turned into a cottage industry.
Court documents in Hussin's case against Lemberg Law go on to claim that the firm called app users, wanting proof of the calls they reported, without disclosing that they were calling from a law firm or why they wanted the information. Some users thought this call was meant to clarify the FTC complaint.
Sergei Lemberg, managing partner of Lemberg Law, provided a statement to the Record.
"Each person explicitly requested to be contacted by our firm by affirmatively clicking the attached screen, which is elsewhere in the docket," he stated.
The lawsuit also claims that some app users were never contacted, but employers were told to say they had, which means they never checked the facts. They didn’t know they’d become parties in a lawsuit until they found a settlement check in their mailbox with fees deducted by the firm that exaggerated the work they did.
“This is another example of how personal injury lawyers game this system. Here they are allegedly filing a lawsuit on behalf of people who have not contacted them and have not asked to be part of these lawsuits,” Akin said. “This isn’t righting a wrong, it’s about lining their pockets.”