Suing Telemarketers - Simple and Cheap!
February 20, 2009 --> Social Engineering - Figuring out who the are...
Between those annoying car warranty robo-calls that everybody seems to
be getting lately and the pharma-marketers (such is how I refer to the
chuckleheads who call and try to sell you Xanex at over-inflated prices)
who annoy you at all hours, it is getting challenging to track down the
egregious telemarketers. To be successful in finding out who is
behind them, you must do a little social engineering.
Warning: There some times wherein you are just plain out of luck.
The folks making the calls are all based overseas (usually in or around
Bangalore in India) and the folks behind these companies are also based
overseas. (Anecdotally, I have come to the conclusion that such
are usually from the United Kingdom or Mexico.) In these types of
situations, it is generally best to simply pray that they will
eventually stop calling you. They will use all sorts of nefarious
tricks - changing their caller id number, etc to defeat any efforts you
may put in place to block them.
There are the times wherein it appears rather difficult to track the
egregious telemarketers (whether the call centers are overseas or not)
but with a little effort, one can actually get the core information
needed to pursue a case in small claims court or file a complaint with
the FCC or the FTC. Use social engineering...
When those bloody calls come in, your blood starts to boil and all you
want to do is scream at them. I tell you right now...DON'T!
These people are trying to make a sale. Convince them you actually
wish to buy their crappy product or service. They will be so happy
that you have not cursed and hung up on them - like the previous callers
- that they will love to stay on the phone with you. The key is to
get the information as to who they are (or who is contracting out their
services, as such folks are equally culpable) and thus failing the
complaint or taking them to court.
You most definitely DO NOT want to give out real information
about who you are, such as your name, social security number, etc.
Instead get yourself setup with an online fax account (see links on the
right of each page pf this site). Tell the telemarketer that you
are REALLY interested in whatever overpriced garbage they are
trying to sell you, but tell them that you must receive something in
writing (use any excuse under the son - say you have a hearing
impairment - whatever it takes). If they will send you something
in writing (via facsimile or email), than you will have more information
to track down the responsible parties or to file a complaint. In
the case of those awful car warranty calls, ask them for a copy of the
warranty to be faxed or emailed to you. Unless they are a 100%
scam-based outfit that is just taking money but not actually selling
anything, the warranty paperwork will have the name and address of the
company underwriting the warranty. Bingo! There is the party
you take to court or file a complaint against.
Why
I Started Suing Telemarketers
A few years ago, I became supremely sick of the massive number of
telephone calls I would receive from telemarketers. My standard response
was to curse them and hang up on them. As we all know, such tactics do
not work. Those companies that are attempting to sell you a new garage
door, a mortgage refinance a new furnace or who knows what else are
persistent. They will keep calling until they make a sale. As we all do,
in frustration I looked on the internet for information. I learned that
one can actually sue telemarketers. Unfortunately, many of the websites
will give you only a little bit of information and then ask you to buy
an e-book or purchase a subscription. Being the kind of guy that I am, I
delved into the code and figured it out myself.
The Telephone Consumer Protection Act
Many people believe that by placing their telephone number(s) on the
National Do Not Call Registry they
shall be insulated from the intrusive telemarketing calls that have
plagued us the past few decades. Although the Do Not Call Registry has
had some beneficial impact, it is not by any means the panacea
that some may have envisioned. In fact in many cases, I would see the
practical results of the Do Not Call Registry to be a total joke. Unless
the company making the telephone calls is making enough calls to numbers
listed on the Do Not Call Registry to warrant a multitude of complaints
to the appropriate authorities, nobody is going to do a bloody thing
about going after these firms (trust me...been down that road...gave it
up as a lost cause).
Luckily for those of us who are besieged by the bloody mortgage firms
wanting us to "refinance before the interest rates go through the
roof!", the Telephone Consumer Protection Act of 1991 gives us the
right of private action. This means that we can sue the crap out of
those telemarketers who just do not understand the meaning of No!
As I have told friends, associates and
Bob Sullivan of MSNBC, despite
first thoughts, it is not at all difficult to pursue legal action
against those telemarketers who refuse to acknowledge your (just)
demands to be left alone. In fact it is actually pretty bloody easy! As
long as you know
the law (which is - surprisingly -
clear and brief) and follow some
pretty basic steps, you stand an
excellent chance at lining your pocket with potentially a few thousand
dollars with maybe an hour of total time invested and about $50 in court
fees.
Important Notice
I am not a bloody attorney! I am certainly not giving legal advice.
Unfortunately, I must make such a statement for two reasons: 1) I
really have no desire to get in trouble with the Bar Association and 2)
I need to protect myself from the random nutjob who comes to this site,
files 10 lawsuits in small claims court, loses them all due to their
incompetence and then tries to blame me. There are no guarantees in life
and as my grandfather used to say: "there's no such thing as a free
lunch". Do your own due diligence as pertains to your individual
situation and it is always a good idea to consult with an attorney. By
utilizing the materials on this site, you concur that you hold your own
fate in your hands and any actions you may take and the results thereof
are purely due to your own devices/machinations/etc...
Please Note!
As I have not had a chance to fully compile the list of every Small
Claims Court in the United States yet, please visit
this list until such time. If and
when I get my list fully compiled, I shall be including a lot of extra
data such as links to the applicable court rules and which courts allow
the filing of claims online as mine does.
Suing Telemarketers - Simple and Cheap!
When most people think about the process of suing a business entity,
they naturally consider it a complicated and expensive process. They
consider having to find an attorney who specializes in the particular
area of law, the costs for such and weigh it against the potential gain.
Forget all that when it comes to suing telemarketers!
For those individuals like me who have succesfully prosecuted cases
against telemarketing firms, there is little need for an attorney.
(A cover-my-posterior caveat: I am not an attorney, so I cannot
legally advise you. Whenever you are considering legal action, it is
always advisable that you consult an attorney. Personally, I have never
needed one when filing claims against telemarketers, but you may wish to
consider doing so.) The key is that the best venue for
filing suit against a telmarketer is in your local Small Claims Court.
The only fees you must pay are the filing fees (varies upon venue and
amount, but generally is somewhere around $50) and the fee to perform
service of process (anywhere from $10 to $100 depending upon whether or
not you have the court serve the telemarketer via certified mail or you
have a law enforcement officer or other process server handle such).
When the potential gain is thousands of dollars, what is a hundred
bucks?
I have personally filed four claims in Small Claims Court against
telemarketers. I have been paid on three of them (the fourth was against
SBC and they gave me such a runaround on the process serving - BUT they
stopped calling) that I let that one slide. Of the three cases where I
was paid, the following were the results:
1.
Filed a claim against a telemarketing firm based in Florida (Health
Benefits Direct) for $1500. This amount was based upon two calls made
after I told them to stop calling and their failure to provide me with a
copy of their Do Not Call Policy. I settled out of court for $600.00
prior to the trial date.(Initial Cost to me: $55)
2.
Filed a claim against a mortgage brokerage firm in southern California
(due to settlement agreement, I cannot reveal their name) for $4500.
This amount was based upon seven calls made after I told them to stop
calling and their failure to provide me with a copy of their Do Not Call
Policy and their failure to maintain a Do Not Call List. I settled out
of court for $2000.00 prior to the trial date. (Initial Cost to me: $80)
3.
Filed a claim against a mortgage brokerage firm in southern California
(Country Club Mortgage) for $3500. This amount was based upon five calls
made after I told them to stop calling and their failure to provide me
with a copy of their Do Not Call Policy and their failure to maintain a
Do Not Call List. I received a judgment for the the full amount of
$3500, plus $60 in court costs. (Initial Cost to me: $60)
Adding up the above numbers, you can see that I invested $195 (or $250,
if you consider the SBC claim that I let go) and received a total of
$6160.00. Such is obviously a pretty good return on my investment and I
doubt I spent more than three hours total on everything (five hours if
you factor in the time I had to waste sitting in the court on the last
action). Please also note that my local Small Claims Court allowed me to
file everything through an online form. I didn't even have to go to the
bloody court house, except in the one case where the telemarketer didn't
bother to settle. So what do I do with the money? Well, I have been
torn. On one hand, it seems a pretty smarmy way to make some money. On
the other hand, these jerks are violating the law. I came to a
compromise. Some goes to my child's future education; some
goes to buy supplies for our troops
stationed in Iraq, Afghanistan and Djibouti; some goes to basic
household things. (And of course some goes to Uncle Sam as it is taxable
income!). (UPDATE: I have been informed that this is not necessarily
considered taxable income, but I prefer to be safe and treat it as such.
Feel free to consult a CPA.)
Suing Telemarketers - So How Can You Do It?!
Remember, I am not an attorney. I discovered this information on the
internet and learned through trial and error how to go about the
process. Just like you, I become incensed when I get those calls and
they will not stop. I decided that the only way that these firms
(especially the mortgage firms) will stop their behavior is if more and
more people avail themselves of their right to private action. Here is
how you go about it:
1. Log the Calls
This does not need to be a complex process at all. Either utilizes one
of the tools I provide on this website or simply keep a notebook by the
telephone. Each time a telemarketing call comes through you want to do
the following:
-
If you have Caller ID, mark down the telephone number and the caller
information as presented on Caller ID.
-
Mark down the time and date of the telephone call.
-
If your telephone service provider provides inbound caller
information (as my
Vonage Service
does, make a note in your notebook to make a copy of the applicable
telephone records.
-
Be nice to the telemarketer. Ask them to repeat their name, number
and who they are calling for (act like you are a little hard of
hearing if they seem suspicious). Ask them if they have a website.
Sound like you are actually interested in what they are selling.
-
Once you have gotten the aforementioned information, inform them
that you are exercising your rights under the TCPA and that they
must 1) provide you with a written copy of their Do Not Call Policy
within the next few weeks and 2) they must place you on their Do Not
Call List.
(Please note: Telemarketers are allowed at least one "oops" phone
call after you tell them not to call anymore. You cannot count this
"oops" call as a violation.)
Mark in your notebook that you have made these requests. Please mark
any additional information (e.g. they were rude; they swore at you,
they hung up on you).
-
If I was able to get their website address - or such is easily
figured out via Google - I like to follow up the telephone call by
sending an email (preferably to an officer of the company)
reiterating my demand for a copy of the Do Not Call Policy and that
I be placed on their Do Not Call List.
-
In most cases, you will never hear from the telemarketer again. This
is a good thing. If they do not send you a copy of their Do Not Call
Policy within a few weeks, you can assume they are not going to.
Regardless of whether or not they call you again, you
can sue them for failure to provide the Do not Call Policy.
Personally, I do not bother as my goal has been met - they are no
longer calling me. Nevertheless, they would be out of compliance,
thus an easy $500 for you.
-
Each time you hear from the telemarketer (after the one "oops"
call), they are subject to a $500 fine payable to you. DO NOT accept
what they say about their ridiculous assertions that they have 30
days to process such a request. The law is quite clear. In fact the
Direct Marketing Association (which seeks to advance the interests
of telemarketers and similar folks) has
this page
which spells it out rather clearly. (In fact I submitted this page
as evidence against one of the telemarketing firms.) I like to send
emails to the company after each call. It takes only a moment and
shows that you have made an extra effort to assert your rights.
Usually the emails I get back are nasty: "you are a sue-happy
scumbag, yadda, yadda, yadda". Ignore the vitriole, but save the
email. Judges in Small Claims Court love to see this stuff as it is
further evidence of the "scuminess" of these folks.
2. Know and follow the local Small Claims Court rules
Remember, the purpose of Small Claims Court is to give the average
person or business the right to pursue legal action without all the
encumbrances of Superior/Federal Court. I must point out that when
I erroneously made the statement that attorneys are not allowed in a
small claims courtroom. I have been quite correctly admonished by a few
attorneys on this matter - most specifically by
Laura Petelle. Each jurisdiction is
a little bit different. Some are highly restrictive as to when an
attorney can represent a party in the case, others are not. As stated
before: "trust, but verify". I am not an attorney, so you need to be
sure to check the local court rules and consider consulting with an
attorney. I can tell you from my (albeit limited) experience
that judges hate telemarketers just as much as you and I do.
-
Know the upper limit for damages. There is a wide variance amongst
the states. In the coming days I shall post this information
directly, but the amounts are as wide as around $2000 to over
$10,000 in damages that you can seek.
-
Generally,
you are required to make a demand letter
for the applicable amount before filing a claim with the Small
Claims Court. Be sure in your demand letter that you spell out each
violation in detail and indicate the total you are seeking. This is
also the point wherein you can make a settlement offer to keep
fromgoing to court.
-
You must address the issue of venue. Some telemarketing firms will
attempt to say that you have to sue them in their locale. From my
experience, this is simply not true. Their actions caused you
"damage" in your county, so you should be able to sue them in your
county Small Claims Court
(I have been receiving some conflicting information on this, so
please check back in a few days after I get some clarification).
Be sure to verify this information with your local Small Claims
Court.
-
Be very careful with the service of process. If the defendant is not
properly served, your case will be delayed. Additionally, you MUST
serve the proper entity. In my state of California, I get the
information from the Secretary of State's website. Many states are
the same wherein they shall display the Agent for Service of
Process. Although you are suing Acme Telemarketing Company, you are
required to serve their official Agent for Service of Process. Note
that if your Small Claims Court will serve the telemarketer via
certified mail (as my local court does), you may wish to choose this
option first. It is generally cheap ($10). If they avoid the
certified letter you can always
find a process
server.
3. Prepare Your Case and Be Ready for Court
I obviously do not know all the court rules, however the following
guidelines will generally serve you well in preparing and prosecuting
your case in court. (As always, consult your local Small Claims
Court. Many of such will have something called a Small Claims Advisory
Clinic or the like. Utilize their services as they are free and they can
answer many of your questions as to procedure - they cannot provide
legal advice, however.)
-
Organize all your evidence in chronological order. Create a cover
sheet which identifies each applicable item. Be sure it is clear and
concise (unlike TV, Small Claims actions rarely last more than a few
minutes - judges DO NOT like to have to wade through documents that
are poorly organized).
-
Suggested evidence to include: a copy of the TCPA statute (as noted
earlier), a copy of the Direct Marketing Association guidelines (see
above), a copy of all your phone bills (if you have inbound call
reporting like I have) with the applicable calls highlighted, a copy
of your phone logs that you keep by the telephone. I shall be
posting some case law references and some information from federal
resources in the next several days to forestall efforts by
telemarketers for fighting venue, applicability, etc.
-
Before you go to court: Make a copy of your evidence for the court
and for the defendant. Eat a solid meal (do not drink a lot of
coffee). BE ON TIME. Dress appropriately: no hats, shorts, etc. You
do not need to wear a suit, but you should be presentable. Picture
what you would look like upon first meeting your spouse's parents.
-
When you are in court: DO NOT talk to the defendant. Everything goes
through the judge. Hand all materials to the court clerk or the
bailiff. DO NOT approach the bench unless the judge orders you too.
Speak calmly and clearly. It is important to note that Small Claims
Courts are frequently over-worked. The judge want to clear the day's
case load as quickly as possible. Do not get into long-winded
explanations. Best rule of thumb? Stick to the facts. You may be a
little nervous your first time, such is okay. Everybody is. Just
know that it will be over in a very few minutes.