Fake Leads and Limitations of Telemarketing Consent Certificates

There are a number of vendors out there that jumped into the telemarketing chaos some time back in an effort to find a solution to consumers arguing that they never actually provided proper telemarketing consent. Some of these products are well-structured, and generally they provide some sort of verification or certificate or recorded process which is designed to be able to prove up the fact that the call made by the contractor was based off a lead form-fill that was validly completed and submitted by the consumer. 

All of that is fine as far as it goes, and on occasion we use these certificates to negotiate out small telemarketing claims.  But we keep running into three specific problems with these services. 

The first is that the consent certificate is only as good as the underlying telemarketing authorization. We’ve been involved in more than one telemarketing class action where we face the problem that the verification process used by the client has done nothing more than provide concrete proof of a defective telemarketing authorization on all their leads. Put another way, if you’re going to obtain verification or certification of a completed telemarketing authorization, you darn well better make sure that the authorization is legally compliant and allowed you to do what you did in contacting the consumer. Otherwise, you’re handing a loaded gun to the class action attorney because you’ve essentially just made the case for them and provided a boatload of evidence against yourself.

Second, the flavor of telemarketing class actions has been changing over the past year or so. We’re seeing less and less claims on the improper use of an ATDS, and more and more claims going back to the basics, alleging  that the contractor failed to place the consumer on the internal do-not-call list, failed to make the necessary disclosures in the opening script, contacted the consumer outside of the allowable calling days/times, or failed to cross-reference a “stop-calling” request to cover texting as well as telephone calls.

Third, we’re repeatedly seeing instances where the consent certificate is valid to the extent that it shows the lead form being completed, but the consumer alleges they are not the one who filled out the lead intake form. In other words, either(i) the phone number entered was incorrect and we ended up calling the wrong person, (ii) the phone number was correct when entered by the consumer, but then was later reassigned and we ended up calling the wrong person, or (iii) there’s a scam going on, and either lead aggregators are creating false leads to sell to contractors (which has happened), or we have specific serial litigants out there who are, whether by themselves or via confidants, deliberately entering incorrect data into a lead intake form so that they are called, and then they deny having completed the form.

That we have serial litigants in the telemarketing game is not a surprise to anyone. Here at BLLP we are on a first-name basis with a number of them around the U.S.  And the courts have been particularly open to a consumer’s argument that no matter what the lead intake form says and no matter what the consent certificate shows, it wasn’t actually them that completed the process. This opens up a bit of a rabbit hole, requiring that we try to subpoena the owner of the ISP that’s reflected on the consent certificate (assuming there is an ISP to track), and then trying to tie the owner of that ISP to a relationship with the serial litigant.  This is occurring more and more frequently, and if I were a suspicious individual I might actually begin to believe that some of these class action telemarketing plaintiffs’ lawyers are actually working in some sort of unspoken conspiracy with some of these serial litigants to jury-rig these telemarketing complaints.  But, of course, that would be highly unethical, so I’m sure it’s not occurring.