Legal Blog

How to Stop Unsolicited Marketing Calls and Make Money in the Process | Part Four

A Guide to Starting a Self-Represented Lawsuit in New York

Prepare your Lawsuit

 

Step 5. Calculate your damages (“Show me the money”):

The TCPA provides that a private party can bring an “action based on a violation of this subsection or the regulations prescribed under this subsection” and “recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation.” In addition, treble damages are available: “If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available.” 47 U.S.C. 227(b)(3).

Each of the following is a violation:

Under the TCPA:

  1. Placing the call with a prerecorded message without your written consent to be called (violation of 47 U.S.C. 227(b)(1)), and
  2. Placing the call despite the fact your number is listed on the national do-not-call list (47 U.S.C. § 227 (c)).

Under the Code of Federal Regulations:[1]

  1. The company’s failure to clearly identify itself at the start of the recording (47 C.F.R. 64.1200(b)(1)),
  2. The company’s failure to provide you with a call back number in the recording (47 C.F.R. 64.1200(b)(2)),
  3. The company’s failure to provide you upon demand with its company-specific do-not-call policy within 30 days, 47 C.F.R. § 64.1200(d)(1), and
  4. The company’s failure to provide caller information (47 C.F.R. 64.1601(e)).

Wait a second. That’s six violations in one call. Does that mean that I can get $3,000.00 in statutory damages and up to $6,000.00 in punitive damages for each call (i.e., $9,000.00 per call)?

No. How much you can expect is where the law gets unclear and depends on where you are, i.e., which state you are in. There is authority in the 6th circuit that items 1 and 2 are separate causes of action and you can recover for them separately.[2] Some courts have held that there can be no recovery under the C.F.R. provisions (i.e., items 3-6);[3] others decided that they can be pleaded in the alternative to the U.S.C. provisions (i.e. in the alternative to items 1 and 2).[4]

However, at this point, you should tally up your damages as though you were expecting to fully recover for each item that applies. You can assert the full amount of damages for each violation, even though you may only be entitled to one basis for recovery when it comes to the selection of remedies at trial. You can plead these bases for recovery in the alternative. That is permitted under New York law[5] and also under federal law.[6] Therefore, at this stage, you can claim $500 for each violation per call, plus treble damages if warranted. Just keep in mind that the amount you can reasonably expect to receive will be much lower.

Item no. 5 seems strange – you did not request the company-specific do-not-call policy while you were speaking to the operator. You should do that when you get in touch with the robocalling company in your demand letter, which we will discuss in the next section. Do not ask for it in the call, as it is a dead giveaway that you are not only not interested, but also that you seek to sue the company. They will hang up and thereby stop you from gathering more information on that call.

Note that for any recovery under item 2 (47 C.F.R. § 64.1200(d)(5) – i.e., the fact that they called you while your number was listed on the national do-not-call register – the marketer must call you more than once within a 12-month period. It, therefore, makes sense to wait until the caller has called you at least twice.

You should also consider state causes of action not just for automated marketing calls but also for deceptive acts and practices.[7] Try googling “deceptive acts and practices” in your state.

Little or no evidence is required for a finding of a wilful and knowing violation of the TCPA, which is required to recover treble damages.[8] Frequently, the efforts you had to go through to find this entity shows that there is a wilful and knowing violation – for example, why else would a company website list a non-functioning phone number, fake address, or refuse to give out its name over the phone?

 

Step 6. Send a demand letter…:

Once you have the evidence, an estimate of damages and a company name with an address – or even better, an actual person with an address – it is time to flex your litigation muscles. If you are a seasoned litigator, you know how this unfolds. If you are an aspiring litigation associate, the next three parts will give you an excellent opportunity to get your hands dirty with a real-life lawsuit that is 100% your responsibility. If you are not a lawyer at all, then you will get to see how courts and lawsuits work and maybe the court system will lose some of its mystery and become more familiar.

The demand letter should outline the following:

  • Who you are;
  • What happened (i.e., the calls and their contents);
  • The basis for your lawsuit;
  • The basis for the damages you will claim;
  • A deadline by which the company should respond; and
  • A request that the entity provides you with its company-specific do-not-call policy within 30 days.

In the demand letter, you should make all the claims you can reasonably raise. It will be the defendants’ job to cut them down.

A sample demand letter that I have drafted can be found here [link].

What happens next? You wait for the deadline in the demand letter to pass. Half the time, the company ignores you unless you initiate a lawsuit. The other half, they reach out and attempt to negotiate a settlement. If that happens, skip to Step 9.


[1] In fact, the TCPA and C.F.R. cover numerous other violations which not included in this list. The other violations include calling an emergency line (such as hospital line) (47 U.S.C. 227 (b)(1)(A)(i)), calling a patient line (47 U.S.C. 227 (b)(1)(A)(ii), calling multiple lines of the same business simultaneously (47 C.F.R. 64.1200(a)(5)), or failure to provide a key-activated opt-out option (47 C.F.R. 64.1200(b)(3)).

[2] “We therefore conclude that a person may recover statutory damages of $1500 for a willful or knowing violation of the automated-call requirements, § 227(b)(3), and $1500 for a willful or knowing violation of the do-not-call-list requirements, § 227(c)(5)—even if both violations occurred in the same telephone call.” Charvat v. NMP, LLC, 656 F.3d 440, 449 (6th Cir. 2011)

[3] “[T]he FCC promulgated 47 C.F.R. § 64.1200(b), which requires all artificial or prerecorded voice telephone messages to state, at the beginning of the message, the identity of the entity responsible for initiating the call. Unlike § 227(b), § 227(d) does not authorize a private right of action for violations of that subsection. See generally 47 U.S.C. § 227(d).” Lynn v. Monarch Recovery Mgmt., Inc., 2013 WL 1247815, at *4 (D. Md. Mar. 25, 2013), on reconsideration in part, 953 F. Supp. 2d 612 (D. Md. 2013), and aff’d, 586 F. App’x 103 (4th Cir. 2014), as amended (Oct. 17, 2014).

[4] “Plaintiffs may allege violations of an express provision of the TCPA and, alternatively, violations of the implementing regulations prescribed under the TCPA, in separate counts.” Engle v. Unified Life Ins. Co., Inc., 2014 WL 12508347, at *5 (S.D. Cal. Oct. 27, 2014).

[5] C.P.L.R. 3014: “Causes of action or defenses may be stated alternatively or hypothetically.”

[6] F.R.C.P. 8(a)(3): “[A] demand for the relief sought… may include relief in the alternative or different types of relief.”

[7] In New York, N.Y.G.B.L. § 349 (h) allows recovery for deceptive acts and practices.

[8] Sengenberger v. Credit Control Servs., Inc., 2010 WL 6373008, (N.D. Ill. June 17, 2010).


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