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Suing a TelemarketerHere is the legal brief I filed in a small claims lawsuit against a telemarketer.If you would like more information about telemarketing laws, see my summary. This case occurred before the federal telemarketing law that went into effect in 2003.Although the original was filed with the court and is public record, I have obscured the defendant's identifying information. The telephone lines the defendant was using for telemarketing were disconnected shortly after I filed the suit. She decided telemarketing was not profitable. According to the autodialer's manufacturer, the machine was capable of bothering 4,000 people a day, using four phone lines 12 hours a day. I learned from the defendant the real party behind this scheme is Herbalife and Newest Way to Wealth. |
Although it may be unusual for a small claims case, plaintiff provides this brief because he has prepared a detailed argument and wishes to make that argument clear to the court and to give the defendant a fair chance to prepare. This brief generally takes the form of a complaint (in plaintiff's amateur understanding) with the addition of some analysis and explanation.
1.2. Defendant is a natural person and resides at [address omitted] in Londonderry, New Hampshire.
a. 47 USC 227(b)(3) says, "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater..."
2.2. Plaintiff makes two claims pursuant to RSA 359-E. This court has subject matter jurisdiction over such claims pursuant to RSA 359-E:6 and RSA 358-A:10.
a. RSA 359-E:6 says, "Any violation of the provisions of this chapter shall constitute an unfair or deceptive act or practice within the meaning of RSA 358-A:2..."
b. RSA 358-A:10, I, says, "Any person injured by another's use of any method, act or practice declared unlawful under this chapter may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper..."
2.3. All acts alleged by plaintiff occurred in New Hampshire.
2.4. Defendant is a resident of New Hampshire and acted in New Hampshire.
a. Plaintiff witnessed this and offers as evidence his testimony about this and other events described herein and witnessed by the plaintiff.
3.2. Plaintiff's caller identification display showed, for the Call, the calling line as 603-555-5555 and the name associated with the calling line as "DOE J".
3.3. The calling line, 603-555-5555, is in New Hampshire and the United States.
a. 603 is a New Hampshire area code.
3.4. Plaintiff's answering machine answered the telephone call and recorded this message (herein referred to as the Message):
"Hello. Sorry we missed you. We are doing a search in New Hampshire area for people who would like to earn full- or part-time income working from their homes. Over the past 12 months, we've shown literally hundreds of people across the country how to work from home. If you would like to earn an extra five hundred to five thousand dollars per month, full- or part-time, and are honest, teachable, and would like to start working from your home, please call one eight-hundred five-five-five five-five-five-five to request our free booklet. Again, that number is one eight-hundred five-five-five five-five-five-five. Or log on to our web site at w w w dot example e x a m p l e dot com. Again, that's w w w dot example dot com. We look forward to helping you change your life."
a. Plaintiff witnessed this and prepared a transcript of the message and offers the transcript and his testimony as evidence.
b. Plaintiff rerecorded the message from the answering machine onto an audio tape. Plaintiff offers to play the tape for the court and offers it as evidence.
3.5. The Message does not disclose the identity of the business, individual, or other entity initiating the call or transmitting the message.
3.6. On April 18, 2002, plaintiff called 603-555-5555 and was twice able to connect to and interact with equipment connected to that telephone line. Plaintiff heard the equipment attempt to dial by transmitting telephone number tones, heard the equipment deliver prerecorded messages, and heard that a live operator did not respond to plaintiff's greetings and questions over the telephone connection. In addition, the dialing tones the plaintiff heard were transmitted in quick regular succession, as if by a machine and not by a person.
a. During and shortly after the experimentation, plaintiff prepared a log of plaintiff's experiments and results. Plaintiff offers the log as evidence, in addition to his testimony.
3.7. The messages plaintiff heard delivered as described in the previous claim were substantially similar to the Message, but they differed slightly and were suitable for presentation to a live person rather than an answering machine. Specifically, the equipment, after dialing and hearing a human voice, delivered a short prerecorded message enticing the listener and soliciting the listener to press zero. Plaintiff pressed zero, and the equipment delivered a lengthier message containing essentially the same statements as in the Message. Plaintiff claims a reasonable and probable conclusion is that if the equipment had heard an answering machine greeting message and/or beep, it would have delivered the Message.
3.8. The Message was delivered to plaintiff's answering machine by a prerecorded voice.
a. Claims 3.6 and 3.7 support this.
b. When plaintiff originally heard the message live and when plaintiff replayed the message on his answering machine, it sounded like a prerecorded message. The message sounds professional and is delivered without error, pause, or the interjections common to casual speech.
3.9. In addition to the two connections plaintiff completed as described above, plaintiff made more than 30 other calls to 603-555-5555. One was completed, and plaintiff heard clicking from the equipment but did not interact with it. All other calls resulted in either a busy signal or unanswered ringing. All those calls made between about 9:05 a.m. and about 9:00 p.m. resulted in a busy signal. All calls at other times resulted in unanswered ringing.
3.10. The observations in claim 3.9 are consistent with the operation of an automatic telephone dialing system being used for telemarketing.
3.11. Plaintiff is the sole resident of his home and is the called party in regard to the Call.
3.12. Plaintiff did not consent to receive, give permission to receive, or invite:
3.13. When the Call was made, there was no established business relationship between plaintiff and defendant, either as commonly understood or as defined by 47 CFR 64.1200(f)(4). There was no relationship of any kind between plaintiff and defendant. Plaintiff had no knowledge of or interaction with defendant prior to the Call.
3.14. An automatic telephone dialing system as defined by 47 USC 227(a)(1) and by 47 CFR 64.1200(f)(1) was connected to the phone line 603-555-5555 around the time of the Call and was used to make the Call.
a. Claims 3.6, 3.9, and 3.10 show the definitions are fulfilled. 47 USC 227(a)(1) says, "The term 'automatic telephone dialing system' means equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 CFR 64.1200(f)(1) is identical except for paragraph labeling and the inclusion of "autodialer" as an alternate term for an automatic telephone dialing system.
3.15. The equipment connected to the phone line 603-555-5555 delivers a prerecorded message to the number called without assistance of a live operator.
a. This is shown by claims 3.4, 3.6, 3.7, and 3.8.
3.16. An automatic telephone dialing system as defined by RSA 359-E:1, I, was connected to the phone line 603-555-5555 around the time of the Call and was used to make the Call.
a. Claims 3.6, 3.9, 3.10, and 3.15 show the definition is fulfilled. RSA 359-E:1, I, says, "'Automatic telephone dialing system' means any automatic terminal equipment which stores or produces numbers to be called randomly or sequentially and which delivers a prerecorded message to the number called without assistance of a live operator."
3.17. Neither defendant nor a live operator nor any other human being could be reached by calling 603-555-5555.
3.18. The Message directs the called party to the web page www.example.com.
3.19. Web pages are documents that may contain text, images, sound and multimedia presentations, instructions to be executed by computers, and other data. The web pages available on the Internet are collectively referred to as the World-Wide Web. A Uniform Resource Locator (URL) is a string of characters that identifies a document on the World-Wide Web.
3.20. The string www.example.com is a common abbreviation for the fully-qualified URL http://www.example.com/.
a. Plaintiff has a bachelor's degree in computer science from Rochester Institute of Technology and a master's degree in mathematics, has worked as a software engineer for over 16 years, and is generally familiar with the Internet. Plaintiff offers his testimony regarding this and other claims about computers and the Internet.
3.21. An Internet domain name is a globally unique, hierarchical reference to an Internet host or service, assigned through centralized Internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy. In the URL http://www.example.com/, the Internet domain name is example.com.
3.22. The domain name example.com was assigned to Jane Doe of [address omitted], Londonderry, NH 03053, by BulkRegister.com, a corporation that is in the business of registering Internet domain names.
a. Plaintiff used common sources of domain name information to locate the entity that assigned the domain name example.com. Having found BulkRegister.com, plaintiff then used BulkRegister.com's publicly accessible service for retrieving domain name records. Plaintiff printed the record for example.com and offers it as evidence.
3.23. Defendant is the same Jane Doe who controls the telephone line 603-555-5555, initiated the Call (by operation of equipment if not in person), and transmitted the Message.
a. Claim 3.22 shows the address of the Jane Doe who controls the web site promoted in the Message and the address of the defendant are the same. Additionally, claim 3.2 shows the person controlling the telephone line 603-555-5555 is "DOE J", and Verizon's Nashua area phone book lists only one J. Doe, who resides at "[address omitted], Lon 03053".
3.24. As the registrant of an Internet domain, Jane Doe controls, directly or indirectly, the services of that domain, including the contents of web pages in the domain.
3.25. On April 16, 2002, plaintiff retrieved and viewed the web page http://www.example.com/. That web page that included several links to other pages in the same Internet domain. One of those pages was http://www.example.com/getstarted.html.
3.26. The URL http://www.example.com/getstarted.html identifies a web page named getstarted.html that is retrieved by HyperText Transfer Protocol from the computer system or service named www within the domain example.com. As a component of the domain example.com, it is published and controlled by Jane Doe. (This web page, as it was observed by plaintiff on April 16 and may still be, will be referred to herein as the Getting Started page.)
3.27. The Getting Started page is principally a text document. It contains a pictorial background that is decorative and not relevant. The text solicits the reader to purchase a "decision package" of "training materials" for $36.
a. Plaintiff printed the Getting Started page and offers it as evidence.
3.28. The Message offers the service of showing people how to work from home.
3.29. The Message does not explicitly mention payment for goods or services.
3.30. There is no such thing as a free lunch. The service of showing people how to work from home must come at some cost.
3.31. A purpose of the Message is to effect or encourage the sale of goods or services.
a. This follows from claim 3.27, as the Getting Started page reveals that one of the caller's purposes is to sell a "decision package" for $36. It also follows separately from claims 3.28 and 3.30, and it is apparent to anybody who previously has been subjected to similar sales pitches, including pitches for multi-level marketing schemes, work-at-home schemes, and easy-money schemes.
3.32. The Message entices the recipient to visit the web site example.com, where the recipient will be explicitly solicited by the Getting Started page described above.
3.33. The Message is a solicitation as defined by 47 CFR 64.1200(f)(3).
a. 47 CFR 64.1200(f)(3) says, "The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message: (i) To any person with that person's prior express invitation or permission; (ii) To any person with whom the caller has an established business relationship; or (iii) By or on behalf of a tax-exempt non-profit organization."
b. Claims 3.1 and 3.4 show the initiation of the Call and the Message. Claims 3.18 to 3.32 show the Message is for the purpose of encouraging the purchase of goods or services. Claims 3.11 and 3.12 show that exclusion (i) does not apply. Claims 3.11 and 3.13 show that exclusion (ii) does not apply. Claims 1.2, 3.2, and 3.23 show that exclusion (iii) does not apply.
3.34. The Message is a solicitation as defined by RSA 359-E:1, II.
a. RSA 359-E:1, II, says, "'Solicitation' means the unrequested initiation of a telephone call to a residential telephone subscriber for the purposes of giving, selling, or leasing services or goods, whether real or personal, tangible or intangible; or to gain a pledge, promise, or contribution in circumstances where there is no pre-existing relationship between the caller and the person called; or to obtain information, data or opinions."
b. Claims 3.1, 3.11, and 3.12 show the unrequested initiation of a telephone call to a residential telephone subscriber.
c. RSA 359-E:1, II, does not say a message has to explicitly ask for money to be a solicitation. It says the message is a solicitation if it is for the purposes of selling. That the Call and the Message are for the purposes of selling is shown by claims 3.18 to 3.32.
d. Claim 3.13 shows there is no pre-existing relationship between the caller and the person called.
3.35. The Call was made for a commercial purpose, including that of advertising, offering, encouraging, or effecting the sale of the service of showing people how to work from home and/or the sale of the "decision package" of training materials.
3.36. The Message advertises the commercial availability of the service of showing people how to work from home.
3.37. The Message is an unsolicited advertisement as defined by 47 CFR 64.1200(f)(5).
a. 47 CFR 64.1200(f)(5) says, "The term unsolicited advertisement means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission."
b. Claims 3.35 and 3.36 each separately show the Message has the defined nature. Claim 3.12 shows the Message does not fit the exclusion.
3.38. To make his home a sanctuary and to limit intrusions, plaintiff has:
3.39. Plaintiff has taken great steps to seek peace and quiet and to make his home a sanctuary. Plaintiff uses his home to work, to study, to relax, and to enjoy life, and all of these purposes benefit from peace and quiet.
3.40. Plaintiff's acts have created a valuable sanctuary that provides some relief from the unwanted bombardment of advertising and deception that otherwise assaults us.
3.41. Defendant interrupted plaintiff's peace and quiet and violated his sanctuary.
a. 47 USC 227(b)(1) says, "It shall be unlawful for any person within the United States... (B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party,..."
b. Defendant is a person within the United States (claim 1.2) and acted within the United States (claim 3.3). Defendant initiated a telephone call to plaintiff's residential telephone line (claims 3.1, 3.2, and 3.23) using a prerecorded voice (claims 3.4, 3.6, 3.7, and 3.8) without the consent of the called party (claims 3.11 and 3.12).
4.2. The Call and the Message are not exempted by 47 CFR 64.1200(c).
a. 47 CFR 64.1200(c) says, "The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: (1) That is not made for a commercial purpose, (2) That is made for a commercial purpose but does not include the transmission of any unsolicited advertisement, (3) To any person with whom the caller has an established business relationship at the time the call is made, or (4) Which is a tax-exempt nonprofit organization."
b. That these exclusions do not apply is shown by: (1) claim 3.35, (2) claim 3.37, (3) claims 3.11 and 3.13, and (4) claims 1.2, 3.2, and 3.23.
4.3. The Call and the Message constitute a violation of 47 CFR 64.1200(a)(2).
a. 47 CFR 64.1200(a) says, "No person may: ... (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section."
b. Defendant initiated a telephone call to plaintiff's residential telephone line (claims 3.1, 3.2, and 3.23) using a prerecorded voice to deliver a message (claims 3.4, 3.6, 3.7, and 3.8) without the consent of the called party (claims 3.11 and 3.12), and the call was not for emergency purposes or exempted by 64.1200(c) (claim 4.2).
4.4. The Call and the Message constitute a violation of 47 CFR 64.1200(d)(1).
a. Claim 3.5, 3.8, and 3.14 show this. 47 CFR 64.1200(d) says, "All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall: (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and..."
4.5. This cause of action includes a claim based in part on the initiation of the Call and using a prerecorded voice, which is distinct from the two claims below, which are based on the contents of the Message and the contents of the caller identification information.
a. RSA 359-E:5 says, "Any solicitation message made through the use of an automatic telephone dialing system shall disclose immediately after telephone contact: I. The name of the person, company, or organization making the call. II. The purpose of the call and the goods or services being offered, if any."
b. The Message is a solicitation (claim 3.34) made through the use of an automatic telephone dialing system (claim 3.16). It did not disclose the name of the person, company, or organization making the call (claim 3.5).
5.2. According to RSA 359-E:6, a violation of RSA 359-E:5 is a violation of RSA 358-A, and any right, remedy, or power set forth in RSA 358-A may be used, in addition to any other remedies.
a. RSA 359-E:6 says, "Any violation of the provisions of this chapter shall constitute an unfair or deceptive act or practice within the meaning of RSA 358-A:2. Any, right, remedy or power set forth in RSA 358-A, including those set forth in RSA 358-A:4, may be used to enforce the provisions of this chapter. Such remedies shall be in addition to any other remedies provided by law or equity."
5.3. This cause of action includes a claim based in part on the contents of the Message, which is distinct from the claim above and the claim below, which are based on the initiation of the Call and the contents of the caller identification information.
a. RSA 359-E:5-a says, "No person using an automated telephone dialing system or any other method for solicitation in this state shall use any method, including per-call blocking or per-line blocking, that prevents caller identification information for the telephone solicitor's lines used to make telephone calls to a residential telephone subscriber from being shown by a device capable of displaying caller identification information. The caller identification information displayed shall contain a telephone number at which the telephone solicitor may receive telephone calls if the telephone solicitor leaves a message on a telephone answering device or uses an automatic telephone dialing system that plays a recorded message when a connection is completed to a telephone number."
b. In the first sentence of RSA 359-E:5-a, only the parts that set the context used in the second sentence bear on this claim. That is, "No person using an automated telephone dialing system or any other method for solicitation in this state..." In regard to this, plaintiff is a person (claim 1.2), used an automated telephone dialing system (claim 3.16) or any other method for solicitation (claim 3.34) in this state (claim 3.3).
c. In regard to the second sentence, the caller identification information of the Call did not contain a number at which the solicitor may receive telephone calls (claims 3.2 and 3.17) even though the solicitor left a message on a telephone answering device (claim 3.4) and used an automatic telephone dialing system that plays a recorded message when a connection is completed to a telephone number (claims 3.15 and 3.16).
6.2. According to RSA 359-E:6, a violation of RSA 359-E:5-a is a violation of RSA 358-A, and any right, remedy, or power set forth in RSA 358-A may be used, in addition to any other remedies.
6.3. This cause of action includes a claim based in part on the contents of the caller identification information, which is distinct from the two claims above, which are based on the initiation of the Call and the contents of the Message.
a. 47 USC 227(b)(3) says, "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater..."
7.2. Plaintiff is the recipient of a prerecorded message on a residential telephone line delivered in violation of RSA 359-E:5. A violation of RSA 359-E:5 is a violation of RSA 358-A, so plaintiff is entitled to statutory damages of $1000 as provided for in RSA 358-A:10, in addition to any other remedies.
a. RSA 358-A:10, I, says, "Any person injured by another's use of any method, act or practice declared unlawful under this chapter may bring an action for damages and for such equitable relief, including an injunction, as the court deems necessary and proper. If the court finds for plaintiff, recovery shall be in the amount of actual damages or $1,000, whichever is greater... In addition, a prevailing plaintiff shall be awarded the costs of the suit..."
7.3. Plaintiff is the recipient of a prerecorded message on a residential telephone line delivered in violation of RSA 359-E:5-a. A violation of RSA 359-E:5-a is a violation of RSA 358-A, so plaintiff is entitled to statutory damages of $1000 as provided for in RSA 358-A:10, in addition to any other remedies.
7.4. The remedies of 7.2 and 7.3 are each in addition to the remedy of 7.1 and to each other.
a. RSA 359-E:6 particularly says, "Such remedies shall be in addition to any other remedies provided by law or equity."
7.5. The minimum damage amounts were set by the state and federal legislatures to ensure the protection of privacy interests of residential telephone subscribers and to provide effective remedies. Lesser awards would compromise these goals, and the statutes fix the minimum amounts without giving discretion to the courts.
7.6. Plaintiff has incurred costs in pursuing this action and is entitled to recover costs pursuant to RSA 358-A:10.
A. statutory damages in the amount of $500 for one violation under 47 USC 227 and 47 CFR 64.1200,
B. statutory damages in the amount of $1000 for one violation under RSA 359-A:5,
C. statutory damages in the amount of $1000 for one violation under RSA 359-A:5-a,
D. fees and costs as may be allowable by law, and
E. such further relief as this court in its discretion may allow.
Eric Postpischil
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