In October 2011, I got a phone call from a recorded message asking me about putting advertising on my property. I hung up, but received the same call two days later; this time I called back, and a recording told me to press 9 to be removed from the marketing list. Despite pressing 9, I received the exact same call again a month later. I got mad, and decided to sue whoever was calling me. Here’s how I did it and got $4,000.
I believe that, done right, telemarketing can be an effective, appreciated way to get people services they want, deliver important political messages, and raise money for non-profits. Unfortunately, it’s often done very wrong, and the consumers receiving the calls are left annoyed at best or scammed at worst. The government rarely enforces the laws against bad telemarketers, but consumers have a “private right of action” that lets you sue for $500 per violation, with up to triple damages for telemarketers who knowingly violate the law.
So, without further ado, here’s how to sue a telemarketer.
First, you need to know if the call you’re receiving is illegal. These are the relevant laws and regulations governing automatic dialers:
A couple things to note:
The calls I received were recorded calls, to my personal cell phone, from a business I had no relationship with, so they were illegal.
Once you’ve gotten an illegal call, you need to know who to sue. Most businesses making illegal calls try to keep you from figuring out who they are, so you can’t just look them up in the phonebook – they use shady services to disguise who owns their numbers.
The message I received asked questions about my home ownership, so I tried to give the answers they wanted in the hope of being transferred to a live person. The funny thing is, on the first two calls, I must not have answered correctly, because it hung up on me. But the third time, I was transferred to a live person – David.
Side note: If you’re thinking that, by answering their questions, I gave some permission for them to call me, that’s not actually the case. Because they didn’t have a relationship with me before the call started, the call itself was illegal.
Once I had David on the line, I knew I had to play him along. David was selling a home security system, so I pretended to be interested, and furiously took notes as he talked. I was chatty, but not overly so, and didn’t ask too many questions. Finally, he asked me to schedule a time for one of their employees to come to my house. Of course I didn’t want that, so I told him I was just leaving town, and asked for a number to call him back at. He told me he’d call me instead.
Before we hung up, I asked David for his company’s website. Unfortunately, I discovered it was the site for the product his company sold, not for the actual company. I searched online as much based on the clues I had from our call, but got no leads. I saved the phone number so that I would be ready when I got my call back.
David called me a few days later. I played the same game, and casually asked him to remind me what his company’s name was. When it came time to set up an appointment, I waffled, saying my in-laws were coming to town for the weekend but I didn’t know what time yet, and asked if I could call him back the next day. He started to say he’d call me, but I told him I’d be in and out of meetings all day, and it was unlikely he’d catch me. Finally, he gave me his personal cell phone number.
I thought I would have to track David down and then figure out where he worked, to confirm if he had given me the real company name this time, but I was in luck. When I didn’t return David’s call, I got a call from someone else at his business, this time from a local number. As we talked, I pulled up the website for the company David told me and looked up their office address on their contact page. I chattily asked the person on the phone where her office was – it was a match!
I already had three violations on my hand, but I knew I could get two more pretty easily. The next day, I called the alarm company and asked to be put on their internal Do Not Call list, and asked for a copy of their Do Not Call policy. A few days later, David called me again – violation number four. I told him I wasn’t interested any more, had asked to be placed on their Do Not Call list, and wished him happy holidays. The next week, I put in a second request for their Do Not Call policy, and two weeks later, after still not having received it, I was ready to file my lawsuit.
Since I had received three recorded calls, one live call after asking to be on the company’s Do Not Call list, and hadn’t received a copy of their Do Not Call policy, I counted 5 violations, at $500 per violation, plus triple damages, for a total of $7,500. But the TCPA states that you can sue for $500 for each violation, not each violating call, so I think I should have sued for much more, since each call contained numerous violations.
It’s usually best to file your suit in small claims court so that you don’t have to hire a lawyer. You can sue in your local court, even if it’s not where the telemarketer is located. In California, before you can sue in small claims court, you need to try to settle out of court, so I sent a letter to the telemarketer explaining how they broke the law and demanding $7,500, and said that if I did not hear from them within a week, I would file a lawsuit against them.
To my surprise, their CEO replied. He said that they hadn’t called me, that they work with other companies that make phone calls to people who have “opted in” to receive them, and that I hadn’t given them the dates and caller IDs of the calls, so there was no way to refute my claims. I wrote back giving them the dates and caller IDs of the calls, and when I didn’t hear back in a week, I filed my suit.
If your experience is anything like mine, the telemarketer will try to get you to drop the case or settle for much less than you should. Here are some of the things their CEO tried on me:
The night before our case, I emailed back and forth with the CEO, as he tried to threaten and persuade me to settle. He originally told me he would settle for nothing more than $2,000, then upped to $3,000, and, at 11:30pm, offered me $4,000, which I took.
It’s a shame that shady telemarketers can usually get away with breaking the law. But hopefully this post can help you take matters into your own hands the next time you get an illegal call.