In recent years, the practice of suing telemarketers and companies making outbound calls has gained significant momentum, particularly for violations of the Telephone Consumer Protection Act (TCPA) and the Do Not Call (DNC) list.
A growing trend among “professional litigants” and certain lawyers is using "trap" phone numbers designed to catch businesses violating these laws, leading to lawsuits and hefty fines. This article explores how these litigators operate (often in purposely deceptive ways), the legal framework they exploit, and what businesses can do to avoid falling into these traps.
The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to regulate telemarketing calls, auto-dialed calls, pre-recorded messages, and unsolicited text messages. Under the TCPA, businesses are prohibited from contacting consumers listed on the National Do Not Call Registry unless explicit consent has been given. Violating the TCPA can result in fines of $500 per unsolicited call, or $1,500 for willful violations.
The DNC list is an essential component of the TCPA, which allows consumers to opt out of receiving telemarketing calls. Businesses must comply with the list by regularly scrubbing their call databases (at least every 31 days) and seeking prior consent to contact consumers.
Professional litigants and some lawyers have created a livelihood out of finding (and often enticing) violations of these TCPA and DNC regulations so that they can sue the companies behind the calls. Here are both the strategic and tactical ways through which these professional litigants find the targets of their lawsuits.
1. Strategic Placement of Phone Numbers: These individuals often register multiple phone numbers on the National Do Not Call Registry. These numbers are carefully placed in publicly accessible databases or used in ways that make it likely for telemarketers or companies making outbound calls to contact them.
2. Tracking Violations: When businesses unknowingly call these litigator trap phone numbers, the litigators document the violation. With advanced call-tracking technology, they record and track every unsolicited call or text received.
3. Filing TCPA Lawsuits: After documenting the violations, these litigators file lawsuits against the companies that made the calls. Even a single violation can result in substantial fines, but many litigators pursue cases involving multiple infractions, leading to significant legal and financial consequences for the business.
It would be bad enough if this problem was being done by lawyers alone, but there is a class of private citizens that some call “litigation sharks” and others call “professional litigants” who seem to make their entire livelihood through deceptively using loopholes in the TCPA and DNC regulations to build lawsuits.
Some of these tactics could rightfully be called entrapment if done by government officials, as they require purposeful steps taken by these professional litigants to entice telemarketers and outbound callers into TCPA violations.
Let’s go through some of those tactics that they use, which any company that makes outbound calls should be keenly aware of:
What makes it worse is that there is no upper limit on violations, so many of these professional litigants will entice multiple violations from the same company before filing their suits so that they can rack up the amount of money that they sue for.
The TCPA provides strong consumer protections, and litigators who exploit these protections can file lawsuits even if the recipient never picks up the phone.
Key legal violations include:
Due to the murky language and technology that has vastly changed since the TCPA law went into effect in the 1990s, there are many evasive and quite deceptive loopholes through which these professional litigants can take advantage of an old legal framework.
Some law firms have become notorious for filing TCPA lawsuits using these litigator-trap phone numbers. These cases often involve multiple businesses and lead to settlements or judgments totaling millions of dollars. While they often target large companies who would rather settle than incur huge legal expenses, the “professional litigants” may target smaller companies for whom these costs can be devastating.
For instance, in 2018, a Florida law firm made headlines for using over 35 trap numbers to catch companies violating the TCPA. The firm successfully sued various businesses, recovering large amounts in damages. These cases have established legal precedents that continue to shape how courts interpret TCPA violations.
It’s not just law firms, however, as stated above.
A professional litigant in Tennessee hasn’t even used a lawyer to file over 80 TCPA violation lawsuits using the “opt-in targeting” tactic that was described above. Another in Pennsylvania has nearly 30 so far in which he uses the “call seeding” tactic to entice TCPA violations so that he can file lawsuits.
Another in Pennsylvania has filed or begun the motions for nearly 40 TCPA violations using the “shoeboxing” method above, admitting that her prepaid cell phones are used exclusively to lure outbound callers to make TCPA-violating phone calls so that she can sue them.
There’s even another professional litigant who has sued multiple retailers by using the “opt-out” targeting tactic to trick their outbound calling companies to continue sending messages after she presents an (purposely) unregistered opt-out attempt.
While the TCPA and DNC legislations were created with good intentions, as with many things these days there are people with nefarious intent who are “looking to make a buck” and purposely exploit loopholes in both legislation and technology to do so.
Unfortunately, that means that merely understanding the TCPA and DNC regulations often are not good enough. Any company that makes professional outbound calls needs to be vigilant in training and staying abreast of these tactics that are being used by professional litigants who are actively enticing lawsuits.
Companies that rely on telemarketing or outbound calling must be particularly cautious. Falling into a trap set by a TCPA litigant can be extremely costly, not only in terms of fines but also legal fees and reputational damage.
To minimize risk, businesses should take the following steps:
1. Scrub Call Lists Regularly: Ensure that your contact database is cross-referenced with the National Do Not Call Registry regularly. Automated tools can make this process seamless and help avoid accidental violations.
2. Obtain Written Consent: Before calling or texting consumers, obtain explicit, written consent that includes an opt-in agreement for auto-dialed or prerecorded messages.
3. Create and Enforce Internal DNC Lists: Maintain an internal list of individuals who have opted out of receiving calls and ensure that this list is respected across all departments.
4. Use Call Tracking Tools: Implement tools to track the phone numbers you’re calling, ensuring none of them are on the DNC list or belong to known litigators.
5. Train Employees: Educate your staff on TCPA regulations and ensure they understand the potential consequences of violating these laws. The “call seeding” tactic is one of the more nefarious, and your staff needs to be explicitly trained against this tactic so that they don’t fall for it. It only takes once.
While the TCPA and DNC list exist to protect consumers, certain litigators and professional litigants have found ways to exploit these regulations by using trap phone numbers to sue companies for enticed violations. Businesses that rely on telemarketing or outbound calling must remain vigilant in their compliance efforts, ensuring that they do not become easy targets for TCPA lawsuits.
By implementing best practices, regularly updating their call lists, training their staff, and obtaining proper consent, companies can minimize their risk and avoid falling into these legal traps.
A trap phone number is a number intentionally placed on the National Do Not Call Registry by litigators, professional litigants, or lawyers to catch companies violating the TCPA. These numbers are used to document unsolicited calls and file lawsuits against businesses that contact them.
Businesses should regularly scrub their call lists against the National Do Not Call Registry, obtain written consent before making calls, maintain an internal DNC list, train their staff well, and use call tracking software.
Violations of the TCPA can result in fines of $500 per unsolicited call or text, or $1,500 for willful violations. Additionally, businesses may face costly lawsuits, legal fees, and reputational harm.
Yes, even a single unsolicited call to a number on the DNC list can result in a lawsuit and significant penalties.
