Professional Plaintiff’s History of Deception Results in Summary Judgment for Defendant

A TCPA lawsuit in the Western District of Washington recently came to an ignominious end for professional plaintiff Kenneth Johansen.

In Johansen v. Efinancial LLC, Johansen filed a class action complaint, alleging that Efinancial violated the TCPA by calling his phone number, which was listed on the National Do-Not-Call Registry.  The Defendant filed a Motion for Summary Judgment (MSJ), arguing that it had express permission to contact Johansen by virtue of an online form submission from a lead vendor’s website that included Johansen’s name and contact information, including the phone number in question.  The website form included a properly placed and worded TCPA consent disclosure.

In the subsequent call triggered by the form submission, Johansen feigned interest in the final expense insurance offer and provided additional information, actions which Johansen later claimed were in furtherance of his “investigation” into who was calling him.  Johansen categorically denied submitting the form that led to the call, as detailed in the “Letter of Intent to File a Telephone Consumer Protection Act Claim” he sent to the Defendant after the call:

Thank you for providing the consent data you have related to my telephone number. The data you provided confirms that I could not have been responsible for the data entry. The IP address is a Google ISP located in Mountain View, California. I have no connection with Google and have not recently been in California. The Last Name is misspelled “Johanson”. The “dob”, the “height” and the “weight” data are not even close. You initiated a telephone call to me one minute after the data was received by your system. I did not provide my consent to your company to make telemarketing calls to me…

The Ruling
In ruling on the MSJ, the Court first confirmed that consent to be called can be properly obtained via an online disclosure, stating that “the FCC has determined that the “signed, written agreement” requirement may be fulfilled by submission of a website form. Applying this guidance, courts have found that a person can provide prior express permission by submitting a web form with personal information when the web form includes a notice that the person agrees to be contacted.

Although Johansen swore under oath that he never visited the website or provided his consent, the Court was not swayed, noting that Johansen did not object when he received the call and, instead, provided detailed personal information consistent with a consumer who was interested in the offer. Moreover, the email address submitted with the form was associated with a physical address that Johansen supplied during his call, which supported the contention that Johansen submitted the form.  The Court disregarded his sworn statement and ruled in favor of the Defendant.

Johansen’s History of Deception
Normally, a plaintiff’s sworn statement that he or she never visited a website or submitted a form is sufficient to overcome an MSJ, as it creates a question of fact for the jury to decide.  In this case, however, the Court elected to disregard Johansen’s statements and grant the MSJ based on Johansen’s long and consistent track record of deceptive behavior while “investigating” phone calls in connection with his “extensive and profitable history with lawsuits involving TCPA claims.”

The Court noted that Johansen was responsible for approximately 60 TCPA lawsuits, many of which involved deceptive conduct of a similar nature.  For example, in Johansen v. Bluegrass Vacations Unlimited, the court stated: “Plaintiff acknowledges that he has developed a “typical practice” of deceitful conduct used to succeed in prosecuting TCPA claims. Plaintiff poses as a customer of the entity responsible for initiating the telemarketing call and induces the representative into believing that he is, in fact, an established customer and genuinely interested in the product or service offer, thereby prolonging the purported injury that Plaintiff claims to have suffered and increasing the potential damages that he could, in theory, recover.”

Similarly, in Johansen v. Nat’l Gas & Elec. LLC, Johansen admitted that he posed as an interested customer when he received a telemarketing call and called the company back when the initial phone call was disconnected, and acknowledged that he never had any intention of placing an order, but played along “as he typically does” and affirmatively took the steps necessary to become a customer despite knowing that “no matter what happened, he would not receive the company’s services” because he deliberately provided the company with an incorrect address and an incorrect account number. 

In light of the false statements and deceptive conduct undertaken by Johansen in furtherance of his “investigations” the Court justifiably refused to believe his sworn statement that he did not submit the form that triggered the call from Efinancial.

The DNC Safe Harbor
Johansen v. Efinancial is also notable in that it applied the TCPA’s “safe harbor” defense to DNC violations when deciding on the Motion for Summary Judgment.  The DNC safe harbor offers an affirmative defense for companies that have adopted compliant DNC practices and procedures, for violations that arise from a good faith mistake.

In this case, the Court took note of Efinancial’s routine business practice of complying with the standards required by the safe harbor provision and had substantially complied with the purpose of the TCPA by only contacting consumers who consented to be called. Thanks to these procedures, the Court held that even if the claim was submitted fraudulently by a vendor, Efinancial could not be liable because it mistakenly believed it was a calling a consenting customer.

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