Debt Collection, Harassment, Cell Phones, Federal Law, and Massachusetts Law

See Also: Debt Collection FAQs: A Guide for Consumers

Obviously, it is annoying to receive unwanted telephone calls from anyone, especially telemarketers and debt collectors. When calls are about a debt you don’t even owe, or to your cell phone, or placed by an autodialer, they are downright infuriating.  There are a number of overlapping state and federal consumer protection statutes – 93A,  FDCPA and TCPA – that can be used to stop harassment and penalize violators.

Massachusetts law

93A prohibits unfair and deceptive conduct directed at Massachusetts consumers. The Massachusetts Debt Collection Law, c. 93 § 49, prohibits the collection or attempted collection of a debt in “an unfair, deceptive or unreasonable manner.” Any violation of 93 § 49 is considered an “unfair or deceptive act or practice” under 93A. 93 § 49 specifies four particular practices deemed to be unfair, deceptive or unreasonable, of which harassment is one.

Federal law

FDCPA prohibits further contact upon written request. FDCPA requires validation of a questioned debt. TCPA prohibits calls initiated by an auto dialer to a cellular telephone. If the consumer did not provide their cell phone number to the original creditor or the debt collector, the debt collector violates the Telephone Consumer Protection Act (“TCPA”) every time it calls the consumer’s cell phone by using an auto-dialer or predictive dialing machine. TCPA violations occur when the caller causes a phone to ring.

The four most important things the FDCPA provide are:

  • the right to be be left alone by debt collectors upon written request;
  • the right to dispute a debt and to be shown that there is a valid debt being collected;
  • the right to be undisturbed by abusive, deceptive, and unfair debt collection practices;
  • to receive up to $1,000 for each such violation.

The three most important things the TCPA provide are:

Statutory Damages

FDCPA:  up to $1,000, attorneys’ fees, and costs per call.

TCPA: $500 per violation and, if the violation is willful and knowing,  up to $1,500 per call.

There are exceptions to the TCPA. The most commonly invoked exception is  “express consent.” The FCC opined that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” 2008 TCPA Order at ¶9. Tang v. Enhanced Recovery, LLC.  Annoying debt collection calls, even those to the wrong person, are not necessarily violations. See: NY Federal Court Agrees: No Telephone Consumer Protection Act Violation for Misdirected Prerecorded Debt Collection Calls, and Santino v. NCO.

These days, most people do not have landlines, and use only a cell phone as their primary phone number. When a debt collector is hounding you on your cell phone,  the question of course becomes, “Can A Debt Collector Call My Cell Phone?” Basically, the answer is no, unless you gave the original creditor your cell phone number.

How to make calls stop?

Should You Hire an Attorney?

Yes.  If you do not have a lawyer, hold your horses.  Before firing off a letter to the debt collector yourself, Continue reading

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Understanding How Federal Law is Made

First, it is possible to search for proposed federal legislation here: https://www.congress.gov.

For details on the status of proposed federal legislation this is the link: https://www.govtrack.us and https://www.govtrack.us/congress/bills/#find.

For example, a search for “Peace,” would bring up one potential law: H.R. 1111: Department of Peacebuilding Act of 2021.

Govtrack.us has a page for each “Congressional Bill” (which means a proposed federal law).

The webpage for H.R. 1111 is https://www.govtrack.us/congress/bills/117/hr1111. It shows basic information about this Congressional Bill.

  • Sponsor: Rep. Barbara Lee [D-CA13]
  • Introduced
  • Feb 18, 2021
  • Cosponsors 28 (28D)
  • Prognosis 3%

The link about H.R. 1111’s cosponsors says the “bill has 28 cosponsors — 28 Democrats — not including its sponsor.” (https://www.govtrack.us/congress/bills/117/hr1111/cosponsors)

If there are so many cosponsors, why are the odds of this law passing only 3%?

By clicking on the (details) link, further detail about the odds of this law passing is available:

Rep. Barbara Lee’s press release about H. R. 1111 is here: https://lee.house.gov/news/press-releases/congresswoman-barbara-lee-renews-call-for-department-of-peacebuilding.

“Prognosis Details – this bill has a 3% chance of being enacted. Factors considered: The bill’s primary sponsor is a Democrat. The bill is assigned to the House Oversight and Reform committee. The bill’s primary subject is Government operations and politics. (Factors are based on correlations which may not indicate causation.) Predictions are by Skopos labs.”

By reading through the cosponsors link, it is possible to see that H.R. 1111 has two Massachusetts cosponsors:

1) Rep. Ayanna Pressley. Congresswoman Pressley represents Massachusetts’s 7th District. (https://www.govtrack.us/congress/members/ayanna_pressley/412782).

2) Rep. James “Jim” McGovern, Representative for Massachusetts’s 2nd congressional district. (https://www.govtrack.us/congress/members/james_mcgovern/400263).

Interestingly, the concept of establishing a Department of Peace within the United States Government goes back to 1793 and has had numerous supporters since then. Source: “Department of Peace – Wikipedia – https://en.wikipedia.org/wiki/Department_of_Peace.

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How to get help if you are a victim of crime by email and how to report fraudulent G-Mail accounts

If you become the victim of internet related fraud, the federal government has people specially trained and equipped to help you. The right link to see those resources is: https://www.ic3.gov/

Here is the link to help Google disable a fraudulent G-mail account: https://support.google.com/mail/contact/abuse?hl=en.

Senior citizens, young people, doctors, lawyers – literally ANYONE can be harmed by emails sent by malicious criminals seeking to draw in victims.

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In Loving Memory of Richard H. Leonard

Richard “Dick” Huston Leonard passed away on January 13, 2021.  He lived eighty-nine years, six months, and eleven days.  His parents were Walter (a high school teacher) and Bernice Leonard, of Forest Hills, New York. A neighbor, Preston Hazelwood, adopted Richard when he was orphaned at the age of twelve.  Mr. Leonard was an alumnus of St. Paul’s School in Garden City, Long Island, and Colgate University.  He received a Master’s degree in business from Columbia University and a Master’s degree in international trade and economics from Georgetown University. Mr. Leonard credited the training he received in character and leadership from the United States Marine Corps as the most important part of his education.

Richard H. Leonard had a long and storied career in international finance, starting as a stockbroker on Wall Street in the ’60s.  Later, he led offices in Hong Kong, London, Australia, Ireland, and South Africa.  While a septuagenarian, he started energy businesses in Afghanistan and Columbia. Richard made countless friends around the world while he zealously pursued a life of meaning and action.  Mr. Leonard was survived by two sons, two grandchildren, and third wife Lillian R. Leonard (“Lily”).

Two days before his lungs failed him, Richard asked his son Preston to “make me stronger,” because he wanted nothing more than to see his grandchildren one final time.  Due to the COVID-19 pandemic, however, that final visit was not possible.

Dick Leonard is missed by the many people whose lives he touched. He was a philosopher, a reader, a Marine, a leader, a conversationalist, a patriot, a skier, a hiker, a squash player, a husband, a father, a grandfather, a friend, a gentleman, and most of all – a spiritual being who embraced the human experience.  Richard H.  Leonard’s ashes were interred in the memorial garden at Trinity Church, Princeton, New Jersey.

To honor the memory of Dick Leonard you are invited to make a donation to the U.S. Marine Corps scholarship fund.

Related Articles

Lily Richardson Bride of Richard Leonard, New York Times, May 3, 1981

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Celebrity Endorsements

American companies have long relied upon celebrity endorsements to sell consumer goods. An example is the 1942 Kool-Aid advertisement below:

Advertising Hollywood Screen Star Patricia Morison Says:

‘Kool-Aid is such a convenient beverage, so easy to make.  Everyone enjoys its delightful flavor!’

While this statement by a movie star to help sell a product was not “false advertising” in a legal sense, it is an interesting example of a celebrity endorsement.

The ad’s representation that “Kool-Aid is flavorful and satisfying,” is also not false advertising.

However, the statement “Kool-Aid’s manufacturing facilities are contributing to the nutritional requirements of the armed-forces,” may have been misleading or literally false. 

The 1960 Camel cigarette advertisement below capitalizes on a football star’s fame and popularity to sell a carcinogenic product that interferes with lung function.

“For rich flavor, my choice is Camels.”

Dick Nolan DEFENSIVE BACKFIELD STAR OF THE N.Y. GIANTS

Some advertisements simply associate a product with the name and face of a famous person, which is in itself a form of product endorsement. For example, this 2021 Kellogg’s Frosted Flakes advertisement (on the product itself) has a large photograph of basketball player Shaquille O’Neal.  The cereal box says “SHAQ HAS JOINED TONY’S TEAM TO HELP SAVE SCHOOL SPORTS.  Enter for a chance to win a trip to the Celebrity Crunch Classic and you could see them both in action!”

Shaquille O’Neal’s status in the sports world means his product endorsements carry extra weight. Shaq is not just a famous basketball player – he is one of the greatest NBA players of all time, and “probably the most dominant physical force in league history.” I don’t expect any false advertising class actions about this advertisement involving Shaquille O’Neil – or Tony the Tiger for that matter (although the latter has been involved in decades of litigation over a trademark controversy

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False Advertising and “Puffing”

 
False advertising exists on product packaging, and any other form of advertising where the seller makes claims that “do not simply magnify in opinion the advantages the product has but invents advantages and falsely asserts their existence.” It is at that point that the seller “transcends the limits of ‘puffing’ and engages in false representations and pretenses.” United States v. New South Farm, 241 U.S. 64, 74 (1916).  The 1942 Camel cigarette advertisement below is an example of an ad that does not employ false advertising.  Every statement in the ad is either factually accurate, or mere “puffing.”
 
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The Lucky Strike cigarette advertisement below is an example of a celebrity endorsement:

“Years ago, as an ambitious young actor, I was impressed how well my throat liked Luckies and how well they suited my idea of a perfect cigarette. That impression still stands. In my recent tour of ‘Hamlet’, with its many performances each week and the attendant tax on my throat, I have been convinced anew that this light smoke is both delightful to my taste and the ‘top’ cigarette for an actor’s throat.”

– Leslie Howard
Lucky Strike

This 1937 American Tobacco Company ad goes on with a persuasive argument for choosing Lucky Strikes: “Notice how many professional men and women- lawyers, doctors, statesmen, etc., smoke Luckies. See how many leading artists of radio, stage, screen, and opera, prefer them. Naturally the voices of these artists are all-important to them. That’s why they want a light smoke. You can have this throat protection too. The protection of a light smoke free of certain harsh irritants expelled by the exclusive “Toasting” process.”

False or misleading statements/phrases in this ad:

  • “throat protection”
  • “smoke free of certain harsh irritants expelled,” by a “Toasting”[sic] process.”

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Cellulite Skin Cream and False Advertising

“‘Cellulite’ is a word first coined in France sometime around 1920 to describe the dimpled, uneven appearance of skin caused by the distribution of subcutaneous fat, particularly around the hips, thighs, and posterior of women. Primed by unrelenting pressure to appear youthful and attractive, women have been presented with “anti-cellulite” products in recent years.

Marketers of anti-cellulite products promote the false idea that the normal human imperfection of cellulite can be fixed by applying consumer goods.

For example, one in-store display claims, “You’re only 2 weeks from a firmer, smoother body.”Body Slim Ad

Is the premise that there are slimming or cellulite-banishing effects available through the application of any cream, ointment, supported by credible scientific evidence?

There is a long line of peer-reviewed scholarly articles, and credible medical opinions revealing the ineffective and useless nature of anti-cellulite creams.

Molly Wanner, MD, MBA, and Mathew Avram, MD, JD, both of Massachusetts General Hospital and Harvard Medical School, after carefully studying cellulite, its causes, and attempts at stopping it, have published their conclusion that cellulite is a normal condition affecting virtually all women, for which there is no effective remedy to be found on the shelves of a drug store:

“Cellulite is the characteristic, nonpathologic appearance of dimpled, ‘cottage cheese-like’ skin surface change typically seen in women on the thighs and buttocks. It is commonly seen on the abdomen, breasts, and arms. Given that the occurrence of cellulite is nearly universal in post-pubertal females, it is thought of as a female secondary sex characteristic. Nevertheless, it can be a distressing condition and patients spend billions of dollars on treatments that are largely ineffective.”[1]

The Scientific Community’s Rejection of Anti-Cellulite Claims

According to the first scholarly paper written on the topic of cellulite, “[I]t is an important obligation of physicians to teach the fact that so-called cellulite is not a disease, but is the result of the sex-typical structure of the skin of women and a natural consequence of aging,” and “there is up to now no other cosmetic or medical (short of surgical) treatment to improve so-called cellulite, certainly none at all to cause complete disappearance of it.” Nürnberger, F. and Müller, G. “So-Called Cellulite: An Invented Disease.”   The Journal of Dermatologic Surgery and Oncology (1978) 4:3 221-9.

Medical practitioners still soundly reject the notion that any topical product can effectively treat the condition of cellulite:

  • “At this point, there is no outstanding treatment for cellulite.” (Dr. Molly Wanner, dermatology instructor at Harvard Medical School. See St. Louis, Catherine. “Treating Cellulite? It’s Still There.”[2] The New York Times (June 24, 2009).   See also Wanner, Molly. “An evidence-based review of existing cellulite-reduction treatments.” Journal of Drugs in Dermatology. (2008) April 7(4):341-5.
  • “It’s a Madison Avenue term. It’s a normal variant of fat that shows as dimples. There’s no way a cream or pounding will change that fat.” (Dr. Samuel J. Stegman, associate clinical professor of dermatology at the University of California at San Francisco). See Wells, Linda. “Beauty; Battle of the Bulge.”[3] The New York Times, July 3, 1988.
  • “It’s not a happy situation for women who want to get rid of it because we don’t know how to treat it.” (Dr. Arthur Shipp, clinical professor of plastic surgery at Albert Einstein College of Medicine in New York who conducted an extensive cellulite study. See Carr, Amy. “Erasing Cellulite.”[4] Daily Herald (Arlington Heights) June 7, 1998.
  • “[A]ccording to 27 years of medical literature recently reviewed in The Journal of Cosmetic and Laser Therapy, scientific proof that creams make a real, lasting difference does not exist. ‘There is no evidence to show that any topical medications improve cellulite.’” (Dr. Mathew Avram, Harvard Medical School). See Siegel, Jessica. “Fat Chance.”[5] The New York Times, August 15, 2005.
  • “According to [UCLA’s David Geffen School of Medicine Dr. Jenny] Kim, no studies have convincingly shown that cellulite creams do any good on actual bodies.” Woolston, Chris. “Little proof of cellulite cream success.”[6] Los Angeles Times, November 3, 2008.
  • “I don’t think the evidence is there to recommend spending money on a cellulite cream,” says Dr. Molly Wanner, a dermatologist at Massachusetts General Hospital in Boston and an instructor at Harvard Medical School. Id.

In January 2014, The Federal Trade Commission announced a settlement enjoining a cosmetics company from making deceptive cellulite cream claims.   See “FTC Approves Final Consent Settling Charges that L’Occitane, Inc. Misled Consumers to Believe that Creams Could Slim Their Bodies.[7] In that case, the FTC alleged that L’Occitane violated the Federal Trade Commission Act because it advertised a cream that “helps to visibly reduce the appearance of cellulite,” and “reduces cellulite.” See Complaint, In re L’Occitane, Inc. a corporation, FTC file No. 122 3115[8].

[1] Wanner M, Avram M. “An evidence-based assessment of treatments for cellulite.” J Drugs Dermatol. 2008 Apr;7(4):341-5.

[2] http://www.nytimes.com/2009/06/25/fashion/25skinintro.html?_r=0, last accessed November 19, 2015.

[3] http://www.nytimes.com/1988/07/03/magazine/beauty-battle-of-the-bulge.html, last accessed November 19, 2015.

[4] https://www.highbeam.com/doc/1G1-68783688.html, last accessed November 19, 2015.

[5] http://www.nytimes.com/2005/08/15/opinion/fat-chance.html, last accessed 11/19/15.

[6] http://www.latimes.com/health/la-he-skeptic3-2008nov03-story.html, last accessed November 19, 2015.

[7] https://www.ftc.gov/news-events/press-releases/2014/04/ftc-approves-final-consent-settling-charges-loccitane-inc-misled, last accessed November 19, 2015

[8] https://www.ftc.gov/system/files/documents/cases/140408loccitanecmpt.pdf, last accessed November 19, 2015

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Typo

Quincy District Court  (Basement)

Year: 2012

1 Comment

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