Many spam robocallers take great pains to hide their identities and evade law enforcement, but I am more intrigued by those who brazenly do their dirty deeds out in the open and self-righteously try to defend them. There is something incredibly fascinating about this level of wanton audacity and disrespect for everyone else’s rights. Today I will tell about my all-time favorite Telephone Consumer Protection Act (TCPA) case, involving a robocaller who had one of the highest chutzpah levels ever recorded outside of a U.S. House committee hearing. This spammer didn’t just unconvincingly declare its innocence; it shamelessly blamed the victim for the whole mess.
Before I begin the narrative, I’ll briefly recap a couple of my recent posts so that you can get acquainted with the sociopathic mentality of these types of spammers. First I told you about Midland Credit Management (MCM), whose ever-whirring autodialers in India have made approximately one unsolicited call for every molecule of pollution in the Ganges River. After racking up tens of millions of dollars in fines for various unscrupulous and deceptive practices, in addition to the illegal phone spamming, MCM should have embraced its outlaw status as if it were a drug cartel or a hell-raising motorcycle gang. But instead of going underground, it actually petitioned the U.S. Supreme Court – in a case in which it wasn’t a party – to legalize its misuse of the telecommunications grid. This was about as bold as Lance Armstrong demanding another shot at the Tour de France, or Jeffrey Dahmer asking the Michelin Guide to give his kitchen a three-star rating. You almost have to admire the temerity.
If you prefer your arrogance with a side order of incompetence, you might like to read about Convergent Outsourcing (now part of Transworld Systems / TSI). A bank in Missouri foolishly entrusted this unrepentant recidivist robocaller with the important responsibility of operating its customer service call center. The relationship did not end well.
Today’s morality tale is one that was already mentioned in my book Telephone Terrorism. However, it is so outrageous and humorous that the story deserves to be told again with more gusto. Aside from the entertainment value, it offers a cautionary look at what awaits us if courts continue to dismiss TCPA lawsuits for spurious reasons.
The protagonist is a man named Jan Konopca, the owner of a New Jersey construction business that he operated out of his home and truck. I do not know Mr. Konopca, nor have I had any contact or dealings with the company that harassed him, so the details here have been drawn entirely from public records. (You can get them too, with a PACER account.) While I do not wish to invade this man’s privacy, he was already unfairly portrayed in a Forbes article about this case (see below). So, I think the privacy bird sailed long ago.
Konopca was able to get a great phone number for his business: 222-2222. Unfortunately, it wasn’t just customers who were drawn to this catchy number. Phone spammers found it irresistible too, and around 2007 they began driving Konopca up the wall with repetitive robocalls to both this business line and his personal cell phone. He reported some of them to the police, who were unable to help. One of the worst spammers was FDS Bank, which provides the financing for Macy’s department store credit cards. FDS somehow incorrectly linked Konopca’s 222-2222 phone number to two delinquent Macy’s accounts and harassed Konopca with a perpetual stream of prerecorded calls regarding these debts. He complained to FDS and Macy’s repeatedly and told them that they had the wrong number, but to no avail.
Soon Konopca was getting about twenty unsolicited robocalls per day (including the messages from FDS) on the 222-2222 phone. Even if not answered, each call stole one of the minutes included in his Sprint Wireless plan and frequently pushed him over his monthly limit. In just one billing cycle, FDS Bank robocalled him 178 times and left his wallet more than $70 lighter. On June 1, 2011 it called him five times within an hour from two different phone numbers, and four other times throughout the day. He felt defeated and powerless, testifying later that he hated the calls but thought there was nothing he could do.
Eventually, Konopca decided to contact a law firm about his problem. I don’t know what prompted this; maybe he saw one of those billboards showing an attorney in a boxing outfit or waving a bunch of cash. He learned that he had been sitting on a gold mine. Thanks to the amazing law known as the TCPA, he was entitled to damages of at least $500 for each unsolicited autodialed call! Konopca’s new lawyers scoured his cell phone records from the preceding four years to identify as many spammers as they could. The bullies began to get their comeuppance at the beginning of 2014.
By the time that Konopca’s revenge had run its course, more than thirty defendants had been hauled into court. The list included a few blue chip companies that had likely made an honest mistake by robocalling him, like Walmart, Kohl’s, H&R Block, and Allstate Insurance. Most of the miscreants, however, were little-known entities whose names contained words like “receivables,” “credit,” and “recovery.” Konopca’s phone had fallen victim to the pile of ethical lapses and sloppy bookkeeping that comprises the U.S. debt collection industry. This might have been understandable if he had absconded on a bunch of unpaid bills, but that wasn’t the case. These collectors had apparently seen “222-2222” written on a bathroom wall somewhere, and decided to program it into their autodialers because it was easier than following up intelligently on their accounts. When you can’t afford an investigator to track down the folks who owe money, you can always just annoy random people and maybe they will tire of it and pay the bills themselves.
Most of the robocallers sheepishly admitted that they had no valid reason to be bothering Konopca, and quickly agreed to compensate him as the law required. According to court documents, the total of these settlements topped $800,000 – though his lawyers and the tax authorities probably took substantial bites out of that. FDS Bank, however, balked at the massive liability that it had incurred. It had robocalled Konopca 612 times – not counting many other calls that were too old to be covered by the lawsuit. It now owed him $306,000, but that wasn’t all. The evidence suggested that FDS had actively ignored Konopca’s numerous protestations, willfully and knowingly making the calls without his consent. This meant that the amount would likely be tripled. Even if the bank reached a compromise with him, as the less prolific spammers had done, it would be in the hole for a lot of money. It needed to mount a defense.
There were very few facts working in the bank’s favor, so FDS’s attorneys opted for a long-shot legal strategy. They found a case from Pennsylvania, Stoops v. Wells Fargo Bank, in which a woman bought dozens of phone numbers for the sole purpose of catching robocallers in the act. When she sued one of these spammers for damages, the court rejected her claim under the well-known constitutional doctrine of “no harm, no foul.” The plaintiff had actually wanted to get worthless automated calls, and Wells Fargo happily delivered 85 of them to her in less than three months. It would be unfair to let her have all of this delicious spam and her TCPA money too, so Stoops was not permitted to monetize the bank’s misconduct. FDS’s one hope of winning its case would be to convince the court that Konopca’s lawsuit was like the “manufactured” claim in Stoops.
The only problem was that the two cases had nothing in common, other than that they both stemmed from a bank directing a telephone tantrum at a bystander because some other person didn’t pay a bill. Unlike Stoops, Konopca hadn’t bought a bunch of phones that he didn’t need just so he could sue people for calling them. The worst allegation that FDS could throw at him was that he had retained his business phone for personal use after retiring from his construction firm. He did so despite already having a personal phone, along with a third cell phone that Sprint tossed in as part of his wireless plan. Konopca testified that he used all three phones for various purposes, such as accessing the internet, and Sprint’s records confirmed that he still made and received calls and checked voicemails on the 222-2222 line. But FDS pointed out that the handful of legitimate calls on this phone – maybe just one or two per week – were overwhelmed by the spam that it and other robocallers were squeezing out of their sphincters. Any sensible person would throw the phone away, or at least change the number. In fact, FDS believed, Konopca had a legal obligation to do so before allowing the bank to accumulate hundreds of TCPA violations and nearly a million dollars in penalties. So FDS’s predicament was not its fault at all – it was the plaintiff’s.
This was a farcical argument, but it was about to get even stupider. FDS discovered that Konopca had ported 222-2222 from a landline to a cell phone a few years after the nuisance calls began. The bank’s attorneys insinuated that his motives weren’t just cost, convenience, and the damage that squirrels had done to the wires at his house. The move also had legal significance because a loophole in the TCPA allows debt collection robocalls to be delivered to landline phones without any consequences, even if repeatedly made to the wrong number. When Konopca switched his business landline to Sprint Wireless, the loophole no longer applied and all of the spam calls became illegal overnight. How dare he change his phone plan without FDS’s permission! Next thing you know, he will hang a “No Trespassing” sign on his garage so that he can keep out the people who go in there to smoke crack. The nerve of the man!
By this point, FDS’s legal reasoning had descended down a bizarre rabbit hole. A commonplace consumer decision was now a cog in a grand conspiracy to extort money from a respectable credit card company. But if this was a clever plot, FDS Bank had missed an easy opportunity to thwart it. Debt collection spammers are supposed to subscribe to a database service that tells them, on a daily basis, which phone numbers have been ported to wireless and are now off limits. The bank’s executives didn’t see the need to spend money on this, however. To them, the notion that someone might ditch a landline in favor of a cell phone seemed like something out of a sci-fi movie. They must have been the only people in the universe who had never seen a T-Mobile or Verizon ad, and who didn’t realize that millions of people were walking around with futuristic communication devices in their pockets.
In a court filing loaded with hyperbole, FDS suggested that Konopca’s wireless port was not an inevitable step on the march of technological progress. It was a totally unforeseeable event – a concealed trap that even a sophisticated enterprise like itself couldn’t avoid. More than that, it was part of Konopca’s “premeditated, profit-maximizing scheme to exploit a federal statute.” The bank alleged that this retired construction worker was a legal mastermind with the predictive powers of Nostradamus and the patience of Odysseus. He didn’t sue spammers after just one or two errant calls. He waited until the four-year statute of limitations had nearly run out, subsisting on a meager disability check in the meantime, and then pounced only after he could tally up numerous violations. He knew that all those years of dining from dumpsters and fashioning underwear out of paper bags would eventually be rewarded handsomely. But Konopca could have sued FDS within just a few months of switching to a cellular phone and still collected damages for hundreds of violations. He gained nothing by waiting four years, other than to allow his claims for the earliest calls to lapse. The delay was not the hallmark of a mastermind, but of someone who had not yet received good legal advice.
Amid all of FDS Bank’s victim-blaming, there was not a hint of self-reflection on the abhorrent behavior that it had displayed. One of the core themes of its defense was that Konopca had failed to mitigate the damages by preventing the bank from calling him again. His repeated pleas for FDS to quit tormenting him were insufficient and he should have also surrendered his valuable 222-2222 phone number. But FDS was in a far better position to have mitigated the damages by the completely free and painless tactic of stopping the calls. What did it expect to gain from the 612th robocall that the 20th hadn’t accomplished? Did it really think that a long lost debtor would suddenly pop up on Konopca’s phone and agree to pay the money it owed? FDS’s actions had defied not just the law, but also common sense.
For their final act, FDS’s attorneys introduced Konopca’s other TCPA lawsuits into evidence. They hoped that this would demonstrate that he was a serial litigant who could not be trusted. However, the other cases showed no evidence of misconduct by the plaintiff. Instead, they told the story of a man who had been pushed to the brink by years of pointless harassment and was aggressively fighting back. And you know that Bible verse about how you shouldn’t fuss over a speck of sawdust in someone else’s eye when you’ve got a whole damn tree in yours? It turned out that FDS Bank was far more of a serial litigant than Konopca – but it was on the losing side in its lawsuits. Its misguided robocalls had attracted so many complaints from around the country that it had just been forced to settle a class action for $12.5 million.
So did FDS’s crazy defense work? Not entirely, but the judge felt that he at least had to acknowledge the effort. He groused that neither party had offered a great factual case. This was an odd conclusion to reach, because the only hole in Konopca’s evidence was that he didn’t have tapes of the calls in which he informed FDS that it was dialing the wrong number. However, Sprint’s records confirmed that he had several calls with the bank’s agents that lasted as long as eight minutes. The bank wasn’t offering a free toaster to new customers, so we can assume that he was complaining about the robocalls in these talks rather than trying to open a checking account.
The judge did ultimately rule in Konopca’s favor, refusing to dismiss the suit as FDS had asked, but also hinted that damages might be reduced for any calls that were found to be “manufactured” by the plaintiff. This affected the settlement negotiations and probably forced Konopca to accept far less money than the $900K that his claim should have been worth. As usual in litigation of this kind, the settlement was not revealed and we can only speculate on the final amount. My guess is that he got a check for $261,345.15 plus ten minutes alone with FDS’s best robodialing machine and a heavy crowbar.
Mr. Konopca should be celebrated as a folk hero who successfully vanquished the sleazy corporations that thought they could walk all over him. He responsibly used the legal system for his battle, rather than resorting to a tactic such as arson or the mailing of anthrax spores. Yet Forbes ran an article about him that parroted FDS’s ridiculous persecution complex. It referred to the bank as “a company targeted by a Polish immigrant,” as if FDS had been innocently minding its own business until Konopca stuck his nose into its affairs. This is like fondly eulogizing Osama Bin Laden as “an aviation hobbyist targeted by a foreign military.”
The FDS Bank lawsuit exemplifies the sense of entitlement that permeates the debt collection industry, at least among the unethical companies that specialize in spam robocalls. These collectors feign a moral superiority over everyone else and beg for exemptions from the law and special treatment from the courts. FDS settled Konopca’s claim in 2018, but the case is still relevant because specious defense arguments of this kind have now become a mainstream tactic. The idea is to blow enough smoke up a judge’s robe that he’s looking for flames instead of focusing on the clear-cut evidence.