TRENTON, N.J. (Legal Newsline) - It’s likely that a Polish immigrant is taking advantage of a federal law to score hundreds of thousands of dollars in settlements, but that doesn’t mean he shouldn’t be allowed to.
That’s the thinking of a New Jersey federal judge in the only remaining lawsuit out of the 31 filed by Jan Konopca, who was accused by defendant FDS Bank of manufacturing the circumstances that led the company to call him.
Konopca, through the law firm Marcus & Zelman, utilized the federal Telephone Consumer Protection Act – a law that can punish telemarketers and other companies doing business over the phone by imposing penalties of up to $1,500 per call.
Settlements in his other 30 lawsuits have earned Konopca approximately $800,000.
“Although it is most probable that (Konopca) manufactured the harm based on his motivation to be awarded monetary awards in the lawsuits, the case is distinguishable… by the fact that Plaintiff never gave consent, and he received 612 calls,” Judge Peter Sheridan wrote on Nov. 22 when he denied FDS Bank’s motion to dismiss.
“From a high level look, neither Plaintiff nor Defendant has a great factual case. As a result, the Court applies a Third Circuit case from earlier this year where it held a single call in violation of the TCPA was sufficient harm to show standing.”
The two sides have been waiting most of the year for Sheridan’s decision and recently debated whether a Tennessee ruling in favor of Craig Cunningham, who has often represented himself in his 83 lawsuits, applied to Konopca’s lawsuit.
But the case of Melody Stoops was the one most pertinent to Konopca’s. Stoops stockpiled more than 35 phones with different numbers with the hope that debt collectors would call her in an effort to reach the person who previously used the phone number.
By admitting her scheme, Stoops lost her standing to sue, a Pennsylvania federal judge ruled in 2015. If the calls were the goal, then she experienced no harm when she received them, it was determined.
But Konopca and other professional TCPA plaintiffs have stopped short of making such an admission.
Konopca, who went on Social Security disability after a third car wreck forced him out of work in 2010, came up with three reasons why he has kept an old phone number that was once his landline and, according to court records, can receive more than 1,000 calls in a single month.
He repurposed the number from his landline to his cell because squirrels were chewing on the wire, he said.
Also, the final four digits are all the same number, making it easy to remember for both his mother in Poland and women he meets at bars, he said.
His mother called the number only twice in four years, and Sheridan wrote that there is no evidence he has ever received a call on that number from a woman he met at a bar.
Calls to that number are the subjects of 21 of Konopca’s lawsuits. FDS Bank was calling about a debt owed to Macy’s and was told by Konopca to stop calling him, Sheridan wrote.
TCPA plaintiffs have shown an entrepreneurial spirit:
-Stoops chose new numbers with Florida area codes because she felt people from that state were more likely to be contacted by debt collectors;
-Casey Blotzer allegedly let family members and their friends to use her phone number when entering into financial transactions;
-Jason Alan posted his many phone numbers online as being registered to his various business enterprises, then filed suit against those who called them; and
-Cunningham went so far as to meet with representatives of the companies that called him in order to figure out whom to sue.
Lawyers have been targeted by TCPA defendants, too. Alan’s lawyer, Todd Friedman, faced a counter-lawsuit that ended when Alan’s claim was settled, and a recent lawsuit accuses two law firms and two other companies of using the TCPA to help individuals saddled with student loans file lawsuits against Navient in order to erase the debt.
Konopca’s own lawyers have been accused of similar shenanigans. Collection Solutions says it and two other firms use the Fair Debt Collection Practices Act to file class action lawsuits that pressure defendants into settlements.
Marcus & Zelman has denied those allegations and in April asked a federal judge to impose sanctions on Collection Solutions.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.