LOS ANGELES (Legal Newsline) - A California attorney known for frequently filing lawsuits over unwanted telephone solicitations is at the center of a class action complaint alleging similar violations.
Last week, Todd M. Friedman filed, as a plaintiff, a class action complaint in the U.S. District Court for the Central District of California.
Friedman, a Beverly Hills-based consumer protection attorney, alleges in his Feb. 24 complaint that defendant EverQuote Inc., doing business as CheaperAutoCoverage.com, “negligently and knowingly” contacted him on his cell phone in violation of the Telephone Consumer Protection Act, invading his privacy.
According to Friedman’s nine-page complaint, the defendant began sending text messages with spam advertisements and promotional offers to his cell phone on or about Feb. 9.
One of the text messages read, Friedman claims: “REMINDER: You still qualify for 19.00/Month Auto Insurance. Click Below. http://po.st/WTFIga. Reply STOP to stop or HELP for help.”
In response, Friedman says he replied “Stop.”
Friedman claims he never contacted nor conducted any business with the defendant in “any fashion” -- including having never visited any of its online websites -- prior to the Feb. 9 text message.
“Plaintiff did not provide Defendant or its agents with prior express consent to receive unsolicited text messages, pursuant to 47 U.S.C. § 227 (b)(1)(A),” the complaint states.
The TCPA restricts telephone solicitations, i.e. telemarketing, and the use of automated telephone equipment.
In particular, the law limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines. It also specifies several technical requirements for fax machines, autodialers and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.
Generally, the act makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party” except in emergencies or in circumstances exempted by the Federal Communications Commission.
The law permits any “person or entity” to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation.
Friedman states in his complaint he does not know the number of members in the proposed class -- described as “those persons within the United States who received any unsolicited text messages and/or any other unsolicited text messages from the defendant without prior express consent” -- but believes they number “in the tens of thousands, if not more.”
“A class action is a superior method for the fair and efficient adjudication of this controversy,” the complaint states.
Joseph Miskabi, also a Beverly Hills lawyer, is representing Friedman in the proposed class action.
According to the complaint, the lawsuit seeks only damages and injunctive relief for recovery of economic injury on behalf of the class.
Friedman, in his role as an attorney, has filed nearly 100 lawsuits since January, according to a recent search of PACER, an online service that provides access to federal court documents. Many of the lawsuits he has filed are TCPA-related.
So, are there any ethical issues in Friedman filing a TCPA action as the plaintiff, given his extensive knowledge of the consumer protection statute?
Christine Nielsen Czuprynski, a Chicago-area attorney who focuses her practice specifically in the area of data privacy and security, as well as telecommunications and marketing, said in a previous interview with Legal Newsline there is nothing that prevents a class action lawyer from filing his own case as a plaintiff.
“A TCPA attorney may have an advantage in that he or she already understands the nuances of the law,” noted Czuprynski, who works in Reed Smith LLP’s Information Technology, Privacy and Data Security Group.
But Czuprynski said there is nothing per se unethical about such an individual filing his or her own TCPA case.
“The TCPA is a consumer protection statute meant to protect an individual’s privacy while balancing commercial speech and trade interests. There are specific sections that place restrictions on autodialed calls to cell phones, and the ubiquitous nature of cell phones means that practically anyone can be a ‘victim’ of TCPA violations,” she said.
“That means that anyone, even a class action plaintiff’s attorney who specializes in bringing suits under the TCPA, can file a suit on his or her own behalf for alleged violations of the TCPA.”
Czuprynski, who often provides regulatory advice on the TCPA, pointed out that attorneys are also consumers.
“An attorney can receive a telephone call in his or her capacity as a ‘consumer’ that might violate the TCPA,” she explained. “Whether the case has any merit does not rise or fall on the identity of the plaintiff, but the facts of the case.”
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.