Lemberg & Associates Blog

NCC Business Services’ Lawsuit Against Lemberg Law on Verge of Dismissal

Lemberg Law issued the following press release today:

With the pending dismissal of a defamation case brought by debt collector NCC Business Services, consumer attorney Sergei Lemberg is hailing a magistrate’s ruling as a victory for the First Amendment and consumer rights. “This ruling empowers consumers by protecting the free flow of information over the Internet and leveling the playing field,” he said.

A U.S. Magistrate Court judge has recommended dismissing NCC Business Services, Inc. v. Lemberg & Associates, LLC, which alleged that Lemberg had violated the law by publishing information about the debt collector on his StopCollector.com website.

The lawsuit alleged that the information about NCC Business Services published on StopCollector.com constituted unfair competition based on trademark infringement, defamation, and violations of the Lanham Act. The U.S. Magistrate Judge ruled that NCC Business Services’ claim of trademark infringement was without merit: “[NCC Business Services] has failed to plausibly allege that [StopCollector.com] is likely to cause confusion about consumers because the website makes clear that it belongs to a law firm suing debt collectors….” The court similarly ruled that it would not cause confusion among NCC Business Services’ potential clients. The court further asserted that criticizing or commenting upon the services of a trademark owner doesn’t tarnish or blur the trademark.

The court also rejected NCC Business Services’ accusation that the information on StopCollector.com defamed the company. The judge wrote that the debt collector didn’t make its case: “Although [NCC Business Services] argues there are ‘specific untrue and defamatory statements…on…stopcollector.com,’ the allegations…and the exhibits…simply do not support this argument.”

According to Lemberg, who has for three years running been named the “most active” consumer attorney by the debt collection industry, “There’s now a bright line in the sand. It’s completely legitimate for attorneys to educate consumers about their legal options – and to clearly call out potentially abusive debt collection practices.”

He concluded, “We share this victory with all consumer attorneys who shine the light on the debt collection industry and with all consumers who have been victimized by unsavory debt collection practices.”

This release references NCC Business Services, Inc. v. Lemberg & Associates, LLC (U.S. District Court, Middle District of Florida, 3:13-cv-795-J-39MCR).

National Legal Team

Lemberg & Associates’ consumer law attorneys represent clients across the U.S., including those in Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Georgia, Illinois, Indiana, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, West Virginia, and Wisconsin.

Lemberg Law TCPA Class Action Prevails in Appellate Court

The Seventh Circuit Court of Appeals overturned the decision of the U.S. District Court, Northern District of Illinois, Eastern Division, in the Lemberg Law class action lawsuit, Scott v. Westlake Services. Our client was the lead plaintiff and alleged that Westlake Financial Services violated the Telephone Consumer Protection Act.

Before our client asked for certification of the class of consumers who were similarly harmed by the alleged TCPA violations, Westlake offered to pay our client the full damages called for under the TCPA. When our client turned down the offer, the District Court ruled that Westlake’s offer made the case a non-issue, saying it was over. However, because there was a disagreement about the number of calls Westlake Financial made to our client (which was relevant because Westlake offered her $1,500 per call) the Court said it would oversee the process of determining how many calls she received.

The appellate court noted that, if a defendant offers a plaintiff everything they’ve asked for, “’You cannot persist in suing after you’ve won.’” In other words, a case becomes moot. However, because the defendant offered to pay what it thought it should pay, rather than what our client thought was owed her, our client still had a proverbial dog in the fight. The circuit judge wrote, “Westlake’s offer amounted to telling Scott it was willing to pay for all calls that in its estimation (or perhaps that of a court) violated the TCPA….such an offer could not render Scott’s case moot.”

The judge also appeared to slam the lower court’s ruling, writing, “Our conclusion is bolstered by the district court’s order to conduct post-judgment discovery to determine how many qualifying calls Scott received. Post-judgment discovery is unusual to begin with. The idea of post-judgment discovery into a disputed issue on the merits of the case to figure out how to apply an unaccepted settlement offer that supposedly rendered the case moot is difficult to grasp.”

The appellate court concluded that the case should be sent back to the district court, which should in turn “revive the original case.” The judge added that our client was free to renew her motion for class certification.

Lemberg Law: Client’s Case Against Caribbean Cruise Line Moves Forward

A U.S. District Court judge recently denied The Berkley Group and Caribbean Cruise Line’s motion to dismiss a complaint that Lemberg Law brought on behalf of a client. Our client alleges that The Berkley Group and Caribbean Cruise Line placed hundreds of robocalls to his cell phone in an attempt to sell him a timeshare property. He claims that the robocall asked him to stay on the line to claim a “free” cruise to the Bahamas. In reality, though, the “free” cruise requires consumers to pay a variety of fees and to attend a timeshare presentation.

The lawsuit charges that The Berkley Group and Caribbean Cruise Line violated the Telephone Consumer Protection Act (TCPA) by using an automated telephone dialer system and/or delivering prerecorded or artificial messages to our client’s cell phone without his prior express consent.

The Berkley Group and Caribbean Cruise Line filed a motion to dismiss the case, arguing that the U.S. District Court, District of Connecticut, doesn’t have jurisdiction because the companies are headquartered in Florida. Lemberg Law’s client argued that the court does, indeed, have jurisdiction because the companies made the calls (or caused the calls to be made) into Connecticut. Because Connecticut law says a company based outside the state can be sued in the state if the company does things such as solicit business in the state. In his decision, the judge noted, “…the defendants could reasonably have anticipated being hauled into court where [these] solicitations were targeted.”

The decision goes on to say, “There is no evidence that defendants will be subjected to undue hardship by defending this suit in Connecticut, where they admittedly solicit business…. The interests of Connecticut in adjudicating this case are compelling as the alternative would force Connecticut residents to seek justice afar….”

The court also turned aside the defendants’ argument that the case should be dismissed because Lemberg Law’s client lumped The Berkley Group and Caribbean Cruise Lines together and because our client failed to state a claim under the TCPA. In its decision, the court notes the allegations outlined in our client’s amended complaint, and says, “While defendants argue that plaintiff’s TCPA claim is not plausible, more implausible is the theory that defendants have nothing to do with a telephone marketing campaign for their own products and services.”

Finally, the court denied the defendants’ argument that emotional distress damages are not allowed under the TCPA. The judge wrote, “Plaintiff responds with persuasive authority tat ‘a remedy offered by the TCPA is actual damages.’”

Lemberg Law is pleased that our client’s case will move forward.

Lemberg and Associates Turns the Tables on Debt Collection Agencies

Lemberg & Associates issued the following press release today:

OCTOBER 17, 2013 – STAMFORD, CT – Fair debt attorney Sergei Lemberg (www.StopCollector.com) has turned the tables on a debt collector who allegedly embarrassed consumers by using mailing envelopes that depicted a cartoon hand holding a consumer by the ankles and shaking money out of his pockets. Lemberg said, “Many debt collection agencies routinely violate the law, but this case was especially egregious. Such tactics are nothing more than an attempt to humiliate and mock consumers who are having a difficult time making ends meet.”

With an eye toward empowering consumers and making them aware of their right to sue and recover up to $1,000 from debt collectors who violate the Fair Debt Collection Practices Act, Lemberg published his own version of the cartoon. “In our version, we’re holding debt collectors by the ankles and shaking money into the hands of harassed consumers,” he said. “It’s imperative for people to know that they don’t have to put up with abuse. Instead, they can get the harassment to stop and recover money from debt collectors who violate the law.”

The offensive debt collection cartoon came to light when the Federal Trade Commission announced a $1 million settlement with National Attorney Collection Services, Inc. and National Attorney Services LLC for alleged violations of the FDCPA and the FTC Act. Lemberg applauded the FTC, saying, “The debt collection industry needs to know that it will be held accountable for bad behavior.”

A number of debt collection tactics are prohibited by the FDCPA, including calling repeatedly, talking to third parties about a debt, making threats, and making misleading or deceptive statements. Lemberg, who was named the “most active” consumer attorney of 2012 by debt collection industry insider WebRecon LLC, said, “I’ve seen too many clients who have suffered at the hands of unscrupulous debt collectors. Folks need to learn about their rights under the FDCPA and fight back when their rights have been violated.”

Saying that the Federal Trade Commission does an outstanding job prosecuting the worst offenders, Lemberg concluded, “Unfortunately, obtaining redress for individual consumers is beyond the scope of the agency’s mission. That’s why it’s important for consumer attorneys to bridge the gap and represent everyday people whose rights are being violated.”

Sergei Lemberg in the News

The CBS affiliate in San Francisco aired the following story regarding the new FCC rules pertaining to the Telephone Consumer Protection Act. The story includes an interview with Sergei Lemberg from Lemberg & Associates:

New Telephone Consumer Protection Act Rules Go into Effect October 16

Lemberg & Associates issued the following press release today:

TCPA Attorney Sergei Lemberg Calls New FCC Telephone Consumer Protection Act Rules a Victory for Consumers

OCTOBER 16, 2013 – STAMFORD, CT – Consumer attorney Sergei Lemberg (www.SueSpamTexters.com, www.do-not-call-complaints.com) welcomes today’s implementation of the Federal Communication Commission’s new commercial text messaging and telemarketing rules, calling the more stringent requirements “a victory for consumers.” According to Lemberg, “Folks are being peppered with annoying text messages and robocalls, and need a more effective way to fight back.”

The FCC’s new rules pertain to the Telephone Consumer Protection Act of 1991. Starting today, companies are prohibited from calling or texting cell phones using an “automated telephone dialing system or an artificial or prerecorded voice” without first obtaining the “prior express written consent of the called party.” According to Lemberg, “These new rules represent a seismic shift in consumer privacy protections, and are certain to change the way many companies do business.”

Under the new FCC rules, businesses that engage in robocalling or texting cell phones bear the burden of proving that the consumer gave his or her consent – in writing – to receive such communication. “Starting today, companies must clearly disclose that, by checking a box online or signing on the dotted line, a consumer is agreeing to receive calls and texts on his or her cell phone,” said Lemberg. “To stay in compliance with the TCPA, businesses can no longer simply mine their contact or customer lists; they must go back and ask consumers for permission to robocall or text them.”

The consequences to companies who violate the new provisions remain the same. “Under the TCPA, consumers are entitled to sue companies and recover $500 per call or text, or triple that if a company ‘knowingly and willfully’ violated the law,” said Lemberg. He noted that a crucial element of consumer statutes is what’s known as a fee-shifting provision. “When Congress enacted the TCPA, it understood that people don’t have the financial resources to hire lawyers. That’s why consumers who sue and prevail in TCPA cases are entitled to have their court costs and legal fees paid by the losing side,” concluded Lemberg. “This levels the playing field for consumers who go up against big businesses.”

Campbell Soup Health Claims Challenged

Are heart-healthy soups as good for you as they claim to be? That’s the question being decided in a class action lawsuit against Campbell Soup Company and the American Heart Association. According to a report on Good Morning America, the suit alleges that the AHA’s heart check label on Healthy Request soups doesn’t align with the AHA’s own standards. The suit alleges violations of the New Jersey Consumer Fraud Act, unjust enrichment, and breach of express warranty. Here is a video of the GMA report:

Attorney Sergei Lemberg Applauds Consumer Financial Protection Bureau’s Focus on Debt Collection Practices

Lemberg & Associates issued the following press release in response to the Consumer Financial Protection Bureau’s steps in protecting consumers from debt collection abuse:

Fair debt attorney Sergei Lemberg (www.stopcollector.com) applauded the Consumer Financial Protection Bureau for putting debt collection agencies on notice, providing consumers with debt collection action letters, and expanding its scope of consumer complaints to include grievances related to debt collection. “This is a victory for consumers who don’t know where to turn when they are victimized by abusive debt collectors,” said Lemberg. “It should also be a wake-up call to debt collection agencies that there is a new sheriff in town.”

The Consumer Financial Protection Bureau (CFPB), which was created under the Dodd-Frank Act, issued two bulletins on July 10 that outlined the responsibilities of third-party debt collectors to not only abide by the federal Fair Debt Collection Practices Act (FDCPA), but for both first- and third-party collectors to follow the provisions of the Dodd-Frank Act that prohibit unfair, deceptive, or abusive acts or practices (UDAAPs). According to Lemberg, who was named the “most active” consumer attorney of 2012 by debt collection industry insider WebRecon LLC, “The CFPB broke new ground by making it clear that Dodd-Frank’s prohibition against UDAAPs extends to original creditors, and not simply the third-party debt collectors covered by the FDCPA.”

Lemberg, who has been educating consumers about their rights under the FDCPA via his firm’s website, StopCollector.com, and his YouTube channel (https://www.youtube.com/user/StopCollector), was equally enthusiastic about the CFPB’s new “Action Letter” templates that consumers can use when dealing with debt collectors. “Our firm receives a tremendous number of inquiries from consumers who don’t understand how to dispute a debt, how to get a debt collector to stop calling them, or even how to get more information about a debt they’re not sure they owe,” Lemberg said. “These templates help consumers communicate with debt collection agencies, and also provide a paper trail should a consumer decide to sue a debt collection agency for violations of the FDCPA.”

Against the backdrop of the Federal Trade Commission’s July 9 announcement that it had garnered the largest civil penalty ever ($3.2 million) against a third-party debt collector, Lemberg reserved his most emphatic praise for the CFPB’s acceptance of consumers’ debt collection complaints. Beginning July 10, the CFPB expanded the types of consumer complaints it accepted to include those about debt collection agencies. According to Lemberg, “The Federal Trade Commission has always accepted debt collection complaints, but only for the purpose of undertaking enforcement actions and reporting the complaints to Congress. The CFPB goes several steps further, in that it asks the companies to respond to the complaints and expects the complaints to be closed within 60 days.”

Lemberg concluded, “This is a red-letter day for consumers. The CFPB is sure to become a dogged regulator of the debt collection industry, and will curb some of the most egregious abuses.”

Important TCPA Decision in Suit Brought by Lemberg and Associates Client

On behalf of our client, in January Lemberg & Associates filed a complaint in U.S. District Court, Western District of Wisconsin, against Verizon Wireless. Our client alleged that he had an existing business relationship with Verizon Wireless, but that Verizon Wireless used robocalls to call his cell phone. During his initial conversation with Verizon Wireless, our client told them he didn’t want to be contacted via robocalls and instructed Verizon Wireless to only communicate with him through the U.S. mail. Nevertheless, Verizon Wireless continued calling four or five times per day, and made a total of 393 robocalls to our client’s cell phone. During one call, Verizon Wireless told our client that they could not remove his number and were unable to stop calling him.

The lawsuit charged Verizon Wireless with violations of the Telephone Consumer Protection Act (TCPA) by using an automatic telephone dialing system and/or using a prerecorded or artificial message on a cell phone; by calling despite our client having revoked his consent to be contacted on his cell phone; and by calling for reasons other than emergency purposes.

Verizon Wireless filed a motion to dismiss the case on the grounds that our client had failed to state a claim under the Telephone Consumer Protection Act. Verizon’s argument was twofold: either once consumers give their consent to be robocalled, they can never revoke that consent; or if consumers can revoke their consent, they must do so in writing.

The District Court judge denied Verizon’s motion to dismiss the case, writing, “Consumers can revoke their consent to receive autodialer calls under the Telephone Consumer Protection Act and may do so orally.”

This is a resounding victory for consumers who are hounded by robocalls, and we are pleased that the case will move forward.

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