In my almost 27 years of practice, I spent 12 years in the Consumer Protection Division of the Office of the Attorney General from 1985 to 1997. During my time with the OAG, one of my most unpleasant tasks was responding to what we called ORA’s, short for Open Records Act requests. If there was a request for information on a business being investigated or sued by the OAG for DTPA violations, I was forced to comb the file for responsive documents, to consider what documents were exempt from disclosure and which ones could be disclosed and then to ship copies of the responsive documents to an Open Records Act officer in the Austin office of the CPD in Austin who would send the actual response after redacting either names or social security and credit card numbers, all in a very short time period. I viewed this work as a diversion and also as a possible boon to target defendants who might recover documents that were otherwise exempt from disclosure in the discovery process but could become discoverable through the Open Records Act by means of a failure on my part to respond faithfully and promptly. In short, what I saw was that responding to many of these requests was not only a possible diversion but even a trap for the unwary.
Since entering private practice in the fall of 1997 to concentrate on the representation of consumers and debtors, my opinion of this process has radically changed. What used to be called the Open Records Act, and frankly I still call it that, helps to assure that consumer laws are more completely enforced through private means. Given the limited resources of the OAG and all other state agencies in enforcing state consumer protection laws, some private enforcement is necessary or those laws become superfluous, and providing generous responses to Open Records Act requests can assist consumer lawyers in providing such private enforcement. As I remember well at the OAG, we constantly had to use prosecutorial discretion to winnow out the cases worthy of a public enforcement action, and that often meant that we had to ignore hundreds of unresolved, and many times legitimate, consumer complaints.
Obtaining records of complaints from the OAG, the Office of the Consumer Credit Commissioner, the Department of Insurance and numerous other state regulatory bodies can assist counsel representing consumers in a number of ways. First, it can be used for Tex.R.Evid. 404(b) purposes to locate evidence to establish a pattern of misconduct to prove motive, intent, knowledge and absence of mistake or accident, even though the information obtained from complaints is not directly admissible to prove that the defendant operated in the same manner in the case at issue. Second, it can be used to help establish numerosity when seeking class certification. While class certification under the DTPA is now virtually impossible given the imposition of a reliance requirement for laundry list claims in 1995, class actions may still be certified under other statutes lacking a reliance requirement, such as the usury statutes, the Texas Debt Collection Act (Chapter 392 of the Finance Code) and the Home Solicitation Transactions Act (Chapter 39 of the Business and Commerce Code). Third, when injunctive relief is sought, either for an individual or a class, the existence of complaints and/or testimony from other complainants can persuade a judge to enjoin wrongful practices. Fourth, the existence of similar complaints can be relevant to the size of a statutory penalty. For example, under the DTPA, certain relief like additional damages and mental anguish cannot be obtained absent proof of knowledge, and the existence of other, similar complaints can help to establish such knowledge. Likewise, the amount of any additional damages which can be awarded under the DTPA is likely affected by the frequency of the misconduct at issue, and this is where the information from consumer complaints to state agencies could also prove helpful. Moreover, under the Fair Debt Collection Practices Act, the size of the statutory penalty is supposed to be based at least in part on "the frequency and persistence of noncompliance by the debt collector." See 15 U.S.C. § 1692k(b). Finally, the details in complaints can be a form of dynamite discovery about a target defendant, which can be obtained even before suit is filed.
B. Usury
One of the first cases in private practice where I used consumer complaints was Henry v. Cash Today. See Henry v. Cash Today, Inc., 199 F.R.D. 566 (Tex. 2000). Given the OAG’s action against Cash Today, a payday lender pretending to be an advertising service, there were a vast number of consumer complaints. This demonstrated that a class action raising claims under the Truth-in-Lending Act and RICO, which could not be raised by the OAG, could be filed. In addition, these complaints provided lots of factual details on the operations of Cash Today, guiding our discovery. While requesting copies of the many complaints was probably difficult for the OAG, the private parallel class action filed against Cash Today provided welcome reinforcement to the OAG in its efforts to bring this usurious payday lender to heel.
C. Debt Collection
I have used complaints against debt collectors and creditors to considerable effect in several cases. For example, in an FDCPA and DTPA cases against a law firm that filed about 15 lawsuits to collect consumer debts against residents of Tyler and Houston in Dallas, even though there was no basis for venue there. An Open Records Act request revealed that at least one complaint had been received by the OCCC which was accompanied by a letter from the agency to the law firm noting that this conduct violated the DTPA. Given the fact that this law firm filed at least one more suit in violation of the distant forum abuse provisions of the FDCPA and the DTPA, this information allowed me to argue for a more substantial statutory penalty, because it helped to establish that the misconduct at issue was persistent and knowing, if not intentional.
D. Conclusion
Given the very limited resources accorded to state agencies for public enforcement of consumer protection laws, those laws, such as the DTPA and its various tie-in statutes, cannot be effectively enforced without private enforcement. One way to assist such private enforcement without allocating any substantial resources is providing generous responses to Open Records Act requests.
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