The legal architecture surrounding modern consumers has given rise to a cottage industry-the professional plaintiff. And the Telephone Consumer Protection Act (TCPA), first passed in 1991, ostensibly to protect honest Americans from unwanted, persistent, and harassing automated marketing calls, has been remade by these actors into a profit center by which to target unsuspecting businesses.
A shining example of this statutory evolution lies in the litigation history of Melody Stoops, a Pennsylvania woman whose operational model exemplifies the systematization of consumer protection law into money-making schemes. Stoops actually testified in federal court that her business was literally the “business” of suing large corporations about automated calls to her cell phone without prior express consent. Her operational method provides a detailed account of a manufactured federal lawsuit.
The simplest tool enabling Stoops’ operation was a surprisingly mundane shoebox. But this shoebox contained not shoes, but rather the central hub of an active network of telephonic data points. According to testimony included in federal case files, Stoops purchased, operated, and maintained at least 35 separate prepaid cell phones. None of these phones were shared with family or used for any traditional purpose.
Instead, they were piled together and stored neatly within the shoebox, absent their scheduled use. The obvious commercial purpose of this multi-line apparatus was to receive as many dialing efforts as possible. This provided as many opportunities to trap companies and generate actionable compliance violations as was economically feasible.
The daily mechanics of the shoebox were remarkably straightforward and required considerable organizational effort. As each major national commercial entity, including numerous financial service and lending institutions, such as Comenity Bank, Credit One Bank, Navient, and Wells Fargo, amongst many others, dialed any one of the 35 lines on the network, Stoops went to work. The incoming communications were not viewed as intrusions on personal time or a disturbance. Instead, they were perceived as crucial money-making opportunities. Depending on the call, she would sometimes speak with representatives, at other times let them know it was the wrong number, and on occasion would expressly tell them not to call again.
No matter what verbal interactions took place, however, her most critical step always occurred immediately after the call concluded-manually logging the conversation. Her comprehensive log recorded when calls were made, the caller’s number, who had made the call, and the nature of the communications. This log then provided the necessary evidence to kick off the statutory demand letters and federal lawsuits that followed.
The reason a plaintiff would sink substantial funds into 35 cell phones and hours of manual log keeping comes directly from the law itself. The TCPA prohibits businesses from making any automated or artificially voiced telemarketing call to a consumer’s cell phone number unless it first obtains the consumer’s prior written express consent.
To create a robust incentive to prevent such calls, Congress wrote a very powerful private right of action into the law. The law allows any person to bring an action in federal or state court to stop future violations, and to recover either actual monetary damages or statutory damages, which can run up to $500, and $1,500 if the call is deemed willful.
While these damages are a necessary and adequate mechanism to punish individual robocall recipients of the occasional misdirected marketing call, when applied to a network of 35 separate telephone lines, these numbers create the potential for a business to suffer enormous liability from statutory penalties alone.
If an auto dialer at a financial firm retries an unverified number just 10 times in a month, that alone could result in statutory damages of up to $15,000. Multiplied by dozens of phones and companies, the shoebox concept is clearly designed as a powerful legal weapon. Stoops strategically chose to target large financial institutions, businesses that use automated dialers to communicate with consumers for any number of reasons, such as debt collection and account updates. By intercepting recycled or unverified numbers on her lines, she effectively caught the dialers in a legally mandated trap.
This deliberate accumulation of communication devices and efforts is indicative of an increasingly disturbing systemic problem in the United States. The rise of high-volume, serial plaintiffs whose entire business model consists of navigating and exploiting technical statutory language has completely eroded the boundaries of consumer protection law. Instead of acting as advocates for the people they claim to serve, professional litigants proactively engage in behavior that could potentially result in legal violations on the part of others.
They set up their networks, track legal violations, and hire specialist attorneys who can help them pursue lucrative claims against businesses struggling to comply with ever-evolving regulatory standards. The 35 phone shoebox illustrates this phenomenon at its peak, showing a consumer protection law transformed into a financial fishing net aimed at trapping unsuspecting businesses.