Legal Blog

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

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

Finish the Lawsuit and Get Paid

 

Step 8: Default or Discovery:

If defendants do nothing and you do not receive an answer to the complaint, or a motion to dismiss, or a settlement offer, you have to move for judgment by default. Remember, the time to move for default is not the same as the time by which defendants have to answer your complaint – it is 30 days after you filed the affidavit of service with the court.

This means another trip to the clerk’s office for a third time. Tell the clerk that the defendants’ are in default – their time to answer has expired – and that you want the court to set the case down for an inquest. An inquest is a trial on damages without the other side present. Note the date in your calendar. At the inquest, you will need to explain to the judge why you should be awarded a money judgment against the defendants. You should bring your notes from the calls, printouts from the websites, if any, your demand letter, your complaint, the affidavit of service, printouts from the ICANN or PACER databases and any other evidence you have gathered. Also, bring printouts of the TCPA provisions, cases you rely on and any other law that is relevant – the judge may ask you to support your arguments with the law. On the date, go to the courtroom the clerk told you and sign in with the part clerk. Wait for your name to be called and then proceed to the judge. If you are successful, the judge will grant a judgment.

However, a judgment is just a piece of paper. To turn it into money, you need to enforce the judgment. Go online and find an attorney in the region where the defendants are who specialize in the enforcement of judgments.

If you receive an answer or a motion to dismiss, take it to the court clerk for self-represented parties who will tell you what to do next. If your case gets this far without settlement, it is outside the scope of this article. Few of my TCPA lawsuits have ever gotten to this stage.

 

Step 9: Negotiation and Settlement:

Books have been written on the science and art of negotiation. For any budding litigator, settling cases like these are a great way to get your hands dirty in actual settlement negotiations.

Defendants themselves will likely not contact you – their lawyer will. As you can imagine, they will try all manner of arguments to get you to settle for a low number or to drop the case entirely. Such tactics may include:

  • Lowballing. He offers $50. Return the favor by offering the highest amount you could possibly receive in a trial. This amount is different from the potential amount in the complaint because alternative causes of action do not allow for multiple recoveries. As a rule of thumb, you can ask for $1,500 per call if your number was not listed on the national do-not-call registry or $3,000 per call if it was. Expect your asking number to decrease throughout the negotiations.
  • Arguing the Law. He tells you that you have no case and brings up some obscure ruling from some district court (never in a district in which either of you are located) that awarded no damages in a similar case. Do the equal and opposite – find a case on Westlaw or Lexis that supports you and send it to them. Also, review the cases they sent you and point out how they differ from this case.
  • Arguing the Facts. He claims that no call took place, or that you consented to being called, or that you sued the wrong party and that while the human operator is employed by his client, the call was relayed by a leads generation service that placed the call to you and that his client is not liable for the lead generator. Use the evidence you gathered to rebut all of these assertions. As for the last one, pursuant to FTC guidelines, purchasers of leads can be vicariously liable. If they had knowledge of the lead generator’s conduct, knowingly accepted the benefits, ratified the conduct, or have agreements with the callers making them “authorized” dealers or marketers, they are arguably liable.[1]
  • Intimidation (1). He threatens to remove the case to federal court. Tell him that he is welcome to spend the $400 court fee, publish their clients’ name all over PACER in a TCPA suit (i.e., making them visible to anyone else who is trying to figure out whom to sue), and thank him for removing the cap on your potential damages.
  • Intimidation (2). If you are an attorney, he might threaten you with a bar complaint. Ask where he is licensed to practice law; many states make it a legal ethics violation to threaten a bar complaint during a lawsuit. Then remind him of his obligations.[2]
  • Sympathy. He tells you that his clients are sorry and that they are usually very good at not calling individuals without their consent. He’s lying and he knows it.
  • Shaming. He claims that you are an opportunist taking advantage of entrepreneurial Americans and asks you to be reasonable. Response: You are being reasonable. Receiving unsolicited robocalls is unreasonable.
  • Bluffing. He tells you that he has no more authority from his client to raise the settlement offer. That’s okay. Offer to negotiate with his client directly.
  • Lying. He says that his offer is fixed and that he will not entertain any counter-offer. You can remind him that as an attorney, he is legally required to bring all counter-offers to his clients’ attention.
  • Playing for time. He always needs more time to answer the complaint or to get back to you. Rule of thumb: you can agree to an extension of time if you get something in return, such as acceptance of service on behalf of a defendant you were unable to serve with process.[3] Otherwise, just say no.

 

Throughout this back-and-forth, the gap between their offer and your ask should shrink. They will offer more, you will ask for less. This will take place while their time to answer your complaint is running out. Eventually, you should hit a number you can live with. In my experience, expecting $500-1,000 per call is a reasonable outcome. If there were many calls making the outcome very high (i.e., more than $5,000), defendants will be less willing to settle and fight harder.

Throughout this process, keep your eye on the calendar. Remind opposing counsel that their time to respond to the lawsuit is expiring and that you will move for default if no settlement occurs. Move forward with your application for default if the settlement is not coming along.

Once you have an agreed settlement amount, you can agree on a settlement agreement.

A useful technique at that point is to agree to a settlement amount, without agreeing to a confidential settlement. They will ask for a confidential settlement because they know they broke the law and they do not want you to tell where to find them. You can ask them for additional money in exchange for confidentiality. They will again try to lowball you, and to some extent, the same settlement dance will have to be repeated.

Once the settlement agreement is signed by both parties, all you have to do is wait for the settlement check to arrive and file a notice of dismissal with prejudice (template attached) with the court once the money arrives. Congratulations! You’re done. But remember to pay taxes on the money you received.


[1] DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 24 et seq.: Sellers “may be held vicariously liable under federal common law agency principles for a TCPA violation by a third-party telemarketer.”

[2] E.g. California Ethics Rule 5-100.

[3] Sometimes, a defendant is very hard to find or serve with process, but a second defendant has contacted you via his attorney. You can ask the attorney if he has authority from the first defendant to accept service. If he agrees to accept service in writing, e.g., by email, then that is as good as service by a process server.


ABOUT THEODOR BRUENING

tbruening@offitkurman.com  |  212.380.4111

Theodor has practiced for a number of years in national and international litigation and arbitration. His practice mainly focuses on dispute resolution in construction, architectural, defamation and commercial cases. He also advises on immigration and labor law.

 

 

 

 

 

 

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