Total Merchant Services Telemarketing Calls TCPA Class Action

Total Merchant Services, LLC offers payment technologies for businesses. According to the complaint for this class action, it is also a telemarketer, and one that does not obey the requirements of the Telephone Consumer Protection Act (TCPA).

In its 2012 order, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, the Federal Communications Commission says that the law requires “prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines.”

Yet according to the complaint, Total does not bother to obtain prior express written consent before making such calls to consumer cell phones or homes. Also, the complaint says, the company “fails to honor phone number that have been placed on the national Do Not Call registry located at https://www.donotcall.gov. That is, [Total] places multiple repeated phone calls every year to numbers that have been registered on the national DNC registry for more than 30 days.”

One example of this behavior are the calls made to the plaintiff in this case, Abante Rooter and Plumbing, Inc. In 2015, Total began placing telephone calls to Abante to market its payment processing services. The complaint alleges that these calls were made with Total’s automatic telephone dialing system (ATDS) and a prerecorded voice.

Abante asserts that it never gave Total “any prior express consent, written or otherwise” to receive such calls.

In February 2017, Abante had its general counsel request that the phone calls stop.

Abante provided details of the calls to Total’s general counsel, including the numbers they’d apparently come from and the numbers of the Abante cell phones that received them. Abante’s cell phones have been on the Do Not Call registry for more than thirty days, with the latest phone number registered in July 2018.

In response, Total’s general counsel told Abante that Abante’s “telephone numbers are on a Do Not Call list, [its] email address is not on the marketing email list, and we have reiterated to our sales partners that they must adhere to our compliance guidelines regarding telephonic and email solicitations.”

However, on various dates after that, Abanate continued to receive calls from Total. The additional calls were made to Abante cell phones that Total’s counsel had assured Abante were on its internal Do Not Call list.

The No Consent ATDS Class is all persons in the US who (1) received a call from Total (2) on their cell phones (3) between September 11, 2015 and the date notice is sent to the class in this case (4) made using the same equipment used to call the plaintiff in this case, (5) who had provided prior express consent in the same manner as Total claims the plantiff in this case provided prior express consent.

There is also a Stop Calling Subclass and a DNC Registry Class.

Article Type: Lawsuit
Topic: Privacy
Tags: Called Number on Do Not Call Registry, Failure to stop calling faxing or texting when requested, TCPA, Unsolicited Cell Phone Calls