How to sue a telemarketer

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:

• Telephone Consumer Protection Act, (TCPA)
  • 47 U.S.C. 227(b)(1)(A)(iii) prohibits calling cell phones (whether the call is from a live or a recorded message).
  • 47 U.S.C. 227(b)(1)(B) prohibits calling landlines or cell phones with a recorded message unless the company calling has a business relationship with the recipient.
  • 47 U.S.C. 227(b)(3) provides consumers harmed by violations of the TCPA with the right to sue the violator for $500 per violation. If the violator knowingly broke the law, the court can order them to pay up to triple damages.
• Rules and Regulations Implementing the Telephone Consumer Protection Act
  • 47 C.F.R. 64.1200(b)(1) requires that recorded messages state the identity of the business responsible for the call at the beginning, and 64.1200(b) requires that they state the telephone number of the business during the call.
  • 47 C.F.R. 64.1200(c)(2) prohibits calling any number on the national Do Not Call list.
• Rules and Regulations Implementing the Telemarketing and Consumer Fraud and Abuse Prevention Act
  • 16 C.F.R 310.4(b)(iii)(A) prohibits calling anybody who has previously asked not to be called.

A couple things to note:

• Political campaigns, non-profits, and pollsters can call your landline with a live person or recorded message, even if you are on the Do Not Call list.
• Businesses can call your landline with a live person, unless you are on the Do Not Call list, or have given them your phone number.
• None of these regulations apply to business phones.
• Although manually dialing is very rare, many of these regulations do not apply to manually dialing.

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:

• Threatening to counter-sue. There is no basis for a counter-suit, so I ignored those threats.
• Providing “proof” that I opted in to the calls. They claimed that I had provided my phone number online and sent me the website, date, time, and IP address where I supposedly opted in. The site was for home-based working moms, was clearly a spammy site, and the IP address was from Florida (which I looked up with www.ipaddresslocation.org). There was little chance the judge would believe I had opted in to this site. Furthermore, I doubt a judge would look very kindly upon an opt-in from a site that looked like it was trying to trick people into opting in.
• Claiming that the calls were made by another company, so they weren’t liable. Luckily, my dad’s a lawyer and clarified for me: if you ask somebody to do something illegal, you’re liable. The CEO also told me that the company who had called me had agreed to indemnify them; my dad told me this also has no bearing on my ability to sue the alarm company.
• Claiming that similar cases were ruled in favor of the telemarketer. They provided an example case of somebody who sued the company that actually called me and lost. There was very little information in the documents they sent me, so it wasn’t clear if the case was more than superficially similar to mine. It was also in a different jurisdiction, so the previous ruling wouldn’t have had any bearing on our case.
• Threatening to appeal an unfavorable outcome to a higher court, which would require me to hire a lawyer to have much of a chance. This would have been very expensive for them, so I wasn’t too worried about it. Even if they did, I could still have gone to court without a lawyer, and even if I lost, I would have had the satisfaction of costing them thousands of dollars in legal fees.

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.