Legal Blog

How to Stop Unsolicited Marketing Calls and Make Money in the Process | Part Two

A Guide to Starting a Self-Represented Lawsuit in New York

The Call

This part and the following parts constitute a step-by-step guide on how to sue unwanted telemarketers.

 

Step 1. Keep a record of all marketing calls you receive.

There are numerous ways of keeping track of the calls you receive – a notebook at your desk or a spreadsheet on your computer to record details of the calls; maybe a directory on dropbox where you save screenshots from your phone concerning the calls. Note every call. Note what they say. Note the number indicated. Note the time and date of the call.

To be clear: you actually have to answer the phone. If you do not, there would be no way for you to know whether the call was an automated dialler or some other call, such as a wrong number. Do not expect the autodiallers to leave you a voicemail (though they sometimes do).

 

Step 2. Register your number on the National Do Not Call Registry.

Marketers have a duty to check the National Do Not Call Registry.[1] If they call you even though you are listed on the registry, they have to pay more in damages. If you are already registered or are unsure, go to https://www.donotcall.gov/ and get verification that you are on the registry. Save your verification for your records.

 

Step 3. Receive an automated marketing call, get connected to an operator, and gather all the information possible.

An automated marketing call usually goes something like this:

  • The phone rings. It is not a number you recognize (telemarketers have recently started to use spoofed[2] numbers that have the same area code as you do to make the number look more familiar).
  • Answer the phone. A pre-recorded voice tells you that you have been selected for a special offer, or that you qualify for something, or that a neighbor referred you, or that your account is about to expire… The variations are endless, but all contain a gambit for your attention followed by a request that you dial a number to be connected to an operator. Take notes on the pre-recorded message. Then press the button to get connected.
    If the call goes to your voicemail, and the pre-recorded message is saved there, then that will count as a call that you can sue for. However, there is usually no useful information in the pre-recorded message, which is why you should answer the call and push the button to be connected.
  • After you dial the number, you will be connected to a real human operator. The operator will then likely ask you a series of questions and/or launch into a sales pitch.

The operator has all the information that you need, but he will not want to give it to you – his goal is to sell to you as he is most likely paid by commission. His intention is to get your information, not to give you his. While speaking to the operator, try to keep him on the line for as long as possible to get as many details about the calling entity and the offer as possible.

Take notes. What is the offer? What is the purported entity that is calling you (if they provide a name at all)? Did the calling entity clearly identify itself at the start of the recording? Did it provide you with a call back number in the recording? What is the name of the operator? When was the call made? What number was used for the call? Ask for the name of the company calling you. Ask for their website. Ask what state they are calling from. Ask how the weather is. Make small talk. Anything to get information.

Be advised: Be careful about asking too many questions at once. Frequently, when you ask too many questions, the operator realizes that he does not have a real sales prospect and will hang up on you. It takes a bit of skill and experience to keep the call going and pretend to have an interest in the offer whilst teasing the most information out. Trickle some information toward the operator. Feign interest.

Can I record the call? That is not an easy question to answer. In the U.S., there are single-consent and dual-consent states. Single consent states allow a party to record the call without telling the other party that they are being recorded. Dual consent states require that all parties to a call must be aware of the recording. The majority of U.S. states are single-consent states.[3] The obvious problem is that you do not know whether the operator is in a single-consent state or a dual consent state. Listed below are two situations in which you should be in the clear to record the call.

  1. If you are recording an automated marketing voice, at this point a computer is playing a tape over the phone – that is not a conversation with a human. This part can be recorded.
  2. The recording will frequently state when you are being connected to the operator that “this call may be monitored or recorded,” which can be viewed as giving permission to record the call.

All that said, to be on the safe side, I do not recommend recording the call.

To be clear: in order to have a right to sue under the TCPA, there must be a pre-recorded message before you get connected to a human operator. If you speak to an operator right away (a “cold call”), you will not have a case under the TCPA for that call.[4]


[1] 47 C.F.R. 64.1200(c)(2)[2] Caller ID spoofing is when a caller deliberately falsifies the information transmitted to your caller ID display to disguise their identity. https://www.fcc.gov/consumers/guides/spoofing-and-caller-id

[3] https://en.wikipedia.org/wiki/Telephone_recording_laws#United_States

[4] Of course, in the alternative to getting information, you can use the call for your personal amusement. Once connected to an operator, I sometimes say: “Hello caller, you’re on the air!” or “NYPD Anti-Fraud Task Force, Sgt Lance Hammer speaking.” If you have a toddler at hand, you might consider handing him the phone and telling him that the nice person on the line wants to hear all about his day.


ABOUT THEODOR BRUENING

tbruening@offitkurman.com  |  212.380.4111

Theodor has practiced for a number of years in national and international litigation and arbitration. His practice mainly focuses on dispute resolution in construction, architectural, defamation and commercial cases. He also advises on immigration and labor law.

 

 

 

 

 

 

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