FORT MYERS, Fla. (Legal Newsline) – Court records in Florida show how easy it is for people to get swept up in a figurative machine that generates lawsuits. In fact, it all started for one man with the push of a button.
Donell Tillman didn’t expect an app on a phone he used to play matchmaker between him and plaintiffs lawyers trolling for his business. But that’s what happened when he used the complaint function on the app, which was designed to block unwanted calls.
It started when Ally Financial called Tillman’s phone to collect a debt from the previous holder of the number. After submitting a complaint against Ally Financial with the app Block-It, Tillman was texted about lawyer William Howard, of The Consumer Protection Firm in Tampa, Fla., and the possibility of filing a lawsuit.
In his deposition, Tillman said he didn’t expect the complaint function to be used this way. And even though his case took nearly two years to resolve, he said he didn’t care about it.
“Did you expect that you would receive a text message in response to pressing the complaint button?” Tillman was asked in his deposition.
“Yeah, but I thought it would be from, like, Ally or whoever was calling,” he responded.
Instead, Block-It was acting as a lawyer referral service. The app was sold by First Orion, which also does business as PrivacyStar. The company offers several similar apps.
Tillman sued Ally over the calls in 2016, hiring Howard to do so after First Orion’s text message suggested it.
“I will be sending your case to Billy Howard in Florida. He is the best… you can google him. This should be a very simple case for him to settle quickly,” First Orion’s text said.
Howard is active in the field of the Telephone Consumer Protection Act, a 1991 law that was intended to punish telemarketers but has drawn criticism (and was even the subject of a Congressional hearing) for perceived abuses by plaintiffs and their lawyers.
Howard had the backing of First Orion employee Chrissy Denton, who represented herself to Tillman as an attorney in text messages even though she was not licensed at the time.
Howard was simply next in line to receive a referral from the company. During his deposition in 2017, First Orion's Matt Rateliff, the company's global data products leader, said there was no written agreement for lawyers to receive the company’s referral – they just had to pay a monthly fee.
But, Rateliff admitted that First Orion had failed to receive approval from the Florida Bar as a lawyer referral service, as it was required to do, at the time it referred Tillman to Howard.
Why the need to find TCPA plaintiffs?
Lawyers and non-lawyers have caught on to how lucrative TCPA lawsuits can be. Legal Newsline has previously reported that one woman admitted to a plan in which she bought more than 30 phones and assigned each a different phone number.
Though she lived in Pennsylvania at the time, she requested Florida area codes because she assumed debt collectors were more likely to call those numbers in search of their previous holders. She filed 11 lawsuits, but none since admitting to her plan.
In New Jersey, a Polish immigrant appears to have collected more than $800,000 in settlements from his 31 lawsuits. Defendants say the phone number belonged to his ex-wife.
In California, a man published several phone numbers attached to his businesses and sued companies that called him.
The reason? TCPA defendants overwhelmingly choose a quick payoff to the plaintiff and his or her lawyer rather than risk a trial. Penalties are either $500 per call or $1,500 for more egregious violations, and plaintiffs who know what they’re doing can amass four years’ worth of calls before filing suit.
There are also significant costs in trying to prove innocence. Companies spend approximately $100,000 on lawyers and other expenses to take a case to trial. And that’s only if the case isn’t granted status as a class action, one TCPA defense lawyer says.
If a judge certifies a class of similarly affected individuals, that cost shoots up to approximately $500,000. And the risk of an adverse jury verdict remains.
First Orion's Denton told Tillman that Ally was possibly breaking the law when it called him and wanted to know if it user "harsh or threatening language."
"I think you might have a good case. It doesn't cost you anything but you may get a settlement. Would you like me to pursue a formal claim against them?" she texted.
‘A pool of attorneys’
“So if there were five complaints, everybody would get one; and then you would go back to one. So that’s how the process worked.”
Those are the words of Rateliff as he explained how it came to be that Tillman’s info was passed to the TCPA lawyer Howard. First Orion, despite admitted troubles registering as a lawyer referral service, used a “round robin” system to evenly divide potential plaintiffs among the lawyers who paid the fees.
“The way that this service works is – let’s just call it a pool of attorneys that Chrissy is attempting to put consumers in contact with,” he said.
Tillman, in fact, was first referred to a Louisiana lawyer but the two were unable to connect, according to text messages.
According to the Florida Bar, First Orion was not registered as a lawyer referral service when referring lawyers to Tillman. It was registered in 2017 but is no longer. Its PrivacyStar company passes complaints to the Federal Communications Commission, according to its website.
Rateliff said he thought the company was registered at the time, but the Florida Bar ultimately rejected its application for two reasons – First Orion did not employ four lawyers and did not have a proper title that included the words “lawyer referral service.”
"At First Orion, our core mission is to help people dealing with unwanted calls, whether those are scam or nuisance callers," First Orion told Legal Newsline.
“Some of our mobile applications provided the ability to block calls and file a complaint with the FTC. We also allowed consumers to learn more about their rights, including asking a consumer advocate to take action if TCPA or FDCPA violations occurred.
"All consumers directly consented to participate and any required state legal exemptions were obtained while this service was provided for the users of our call protection applications. This gave consumers direct relief from those who were knowingly and repeatedly violating the law and we stand behind that."
Howard did not answer questions sent to him in an email, though he said the assertion that First Orion was not registered is not true.
It wasn’t a new strategy for TCPA lawyers to use apps to find TCPA plaintiffs. Some were created with names like “Block Calls Get Cash” and “Stop Calls Get Cash” touted the low-risk, high-reward proposition of filing suit.
Those apps were created by TCPA law firms. Lawyers without their own apps could pay First Orion at the beginning of each month “to have Chrissy make an attempt based off these complaints that we receive to get a consumer interested in speaking with an attorney,” Rateliff said.
Tillman did, but his lawsuit ended up more complicated than most TCPA cases, even though it all started with just the push of a button.
Over 23 months, there were nearly 200 docket entries, some of which were sealed or contained redactions. Many cases are settled within a few months.
Ally resisted settling quickly and presented its most aggressive defenses when arguing against the certification of a class. The case settled in 2018 for an undisclosed amount without the judge ever ruling on the issue.
Ally questioned how it could be sued for calls that were supposedly blocked by First Orion’s app and noted that Tillman had testified that he didn’t care about the outcome of his own lawsuit.
And despite the following admission, Howard was seeking a court ruling that would make Tillman the representative of the class:
Q: Okay. So what do you hope to gain from this lawsuit?
A: That’s for the judge to decide.
Q: Okay. So you have no interest in what happens in this case?
A: I have no interest.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.