Fighting Back Against Debt-Collectors and Telemarketers

In 1991 Congress passed the Telephone Consumer Protection Act (TCPA), in an attempt to end unwanted prerecorded telemarketing messages and unwanted calls to cell phones. Although it was enacted more than 20 years ago, the Wall Street Journal recently reported that the number of claims for violations of the TCPA that are filed in, or transferred to, Federal court has increased exponentially in the past few years.  Also, many large companies have agreed to multi-million dollar settlements for alleged violations of the TCPA.  Recently, Heather Nelson, a plaintiff mentioned by the Wall Street Journal, was awarded $571,000 after a debt collection agency called her cellphone over 1,000 times and left more than 100 prerecorded messages in regards to her unpaid debts.  Ms. Nelson’s award was vacated after an undisclosed settlement.

The TCPA prohibits prerecorded calls to residential landlines without prior consent from the consumer, and it requires a consumer’s express consent for calls or text messages to cellphones, fax machines, or “any service for which the called party is charged.”  Considering the proliferation of cellphones in recent years and the increase in the use of auto-dialers by debt collection companies, it makes sense that claims for violations of the TCPA have increased.  TCPA claims have also increased as a result of decisions by regulators and courts.  In 2008, the Federal Communications Commission said that the provisions of the TCPA applied to debt collectors.  In 2012, the Supreme Court held that plaintiffs could bring TCPA cases in Federal court.

Plaintiffs have been successful in claims against debt-collectors because TCPA cases allow defendants fewer defenses than in claims brought under the Fair Debt Collection Practices Act, the law under which debt-collection cases were typically filed.  In a TCPA case, the defendant is often left without a defense if it cannot produce proof of the express consumer consent required by the TPCA for calls to cellphones.  Additionally, if the defendant cannot provide proof of one plaintiff’s consent, there are often many other potential plaintiffs for whom the debt-collector cannot prove consent.  This phenomenon has led to a number of class actions suits and settlements against debt-collectors.

According to the Wall Street Journal, consumer-rights advocates say that, despite the increased litigation, the TCPA has actually reduced unwanted calls to cell phones.  The law has also helped protect consumers’ privacy.  As would be expected, debt collectors feel stymied by the law, especially because auto-dialers are the most efficient way to reach a large number of people.  The Centers for Disease Control also reported in 2012 that about 38% of U.S. households only have cellphones, which further limits the debt-collectors’ ability to contact individuals in accordance with the provisions of the TCPA.


Some Financial Advisors Prey on Veterans

According to the Wall Street Journal, veterans who hire financial advisors to assist them in receiving military benefits are at risk for abuse.  These financial advisors are accredited by the Department of Veterans Affairs’ Office of General Counsel.  Attorneys, veteran service organization employees, financial planners and others are all eligible to apply for such a position.  However, the lack of educational and occupational requirements for these advisors threatens the financial stability of the veterans who seek their guidance in acquiring military benefits.  Additionally, the veterans’ Office of General Counsel does not review the moral character of or the knowledge of the individuals who are accredited.  In an investigation done by the U.S. Government Accountability Office (GAO), various problems were found with these financial advisors, ranging from incompetency to unethical behavior, including the improper sale of annuities to assist veterans in claiming pensions.  From this investigation, the GAO has recommended re-vamping the accreditation program through hiring more staff, acquiring information-technology resources, as well as enhancing initial and continuing education requirements for potential and accredited financial advisors.  The GAO has also recommended addressing the ever-rising threats to veterans before they fall victim to such abuse.

Veterans who have claims against licensed stockbrokers are almost always required to bring their claims before Financial Industry Regulatory Authority (FINRA) arbitration panels.  Typical claims against stockbrokers made in FINRA arbitrations involve the purchase of unsuitable securities and misrepresentations and/or material omissions in connection with the sale of securities.

I began my legal career in the Marine Corps. Upon completing my military service, I was an attorney in the Enforcement Division of the U.S. Securities and Exchange Commission, where I investigated and litigated civil violations of the federal securities laws.  After the SEC, I served as a federal prosecutor in the U.S. Attorney’s Office in Miami and Ft.  Lauderdale, where I was  assigned to the Securities Fraud Unit.  In private practice, I have represented a major brokerage firm.  For the past 13 years, I have concentrated on representing investors.  In my many years of litigating securities fraud cases, I have encountered many excellent securities attorneys and financial advisors.

Veterans who suspect that they have possible claims against their financial advisor should seek out an attorney who is  experienced in handling such claims.  In seeking experienced counsel, veterans should look into the background and experience of eaah prospetive attorney to learn if he or she has ever worked for a federal or state securities regulator and how many investor claims he or she has litigated.

Firing Shots Into the Crowd

On the morning of Friday, August 24, 2012, visitors to the Empire State Building were lining up to ascend the famous structure.  The area was crowded, as usual, with tourists and office workers.   There was nothing out of the ordinary until police began firing shots into the crowd.  A total of 16 shots were fired.

Earlier, a disgruntled employee, armed with a handgun, had approached and killed a former co-worker.  As he was fleeing the scene, he drew a handgun, and two pursuing police officers opened fire.  In addition to killing the gunman, nine innocent pedestrians were hit by the officers’ shots.

As the victims from this police shooting have attempted to recover from the city for their injuries, they have found that the city and the police department are not receptive to making these victims whole.

Relying upon a 2010 New York Court of Appeals decision that held that the Police Department guidelines require officers to exercise professional judgment when they open fire around bystanders, the New York court ruled that police are not barred from discharging their weapons when innocent bystanders are present.  They are prohibited from doing so only when it would “unnecessarily endanger innocent persons.”  New York has grasped onto this language and has made a practice of refusing to settle cases where bystanders were injured or killed by police gunfire.  Moreover, the city has tried to have these cases thrown out without a trial.  Without a day in court, victims are left to wonder if the city is interested in ensuring that police making such judgment calls are giving what could be a life-or-death decision adequate weight.  The city and the Police department have asserted that police officers’ decisions should be protected from excessive second-guessing, but should this protection go so far as to insulate police departments from decisions where deadly force is used and innocent civilians are injured or killed as a result?

Nine innocent persons shot by police.  The concern is not excessive second-guessing, it is excessive shooting.  The bystanders deserve their day in court.