Author Topic: Question: Who do I list as defendant in TCPA petition?  (Read 745 times)

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username_taken

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Question: Who do I list as defendant in TCPA petition?
« on: September 18, 2017 07:28:05 PM »
Good afternoon, I am proceeding with a TCPA case against a home improvement lead generation company. I sent an ITS and emailed a few times with the, (20-something), CEO who doesn't seem to get it. (He even provided me two texts from last year I didn't remember).
 Anyhoo, I'm in the process of writing my petition and am curious as to who I list as defendant; the company or the company and the CEO? He's very proud of himself and is all over their website. Not that matters, but I just wasn't sure.

 Thanks much.

username_taken

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #1 on: September 18, 2017 11:04:36 PM »
Point may be moot; got an email saying he's turned my letter over to his attorney for review.

CleaningUp

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #2 on: September 18, 2017 11:08:16 PM »
If the company is incorporated or an partnership, one sues the legal entity.  If the company is a sole proprietorship, one sues the individual as a dba.


kevinmanheim

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #3 on: September 19, 2017 12:07:31 AM »
I wouldn't waste time going back and forth with your opponent about your claims.

If you offer to settle to avoid a suit, and they decline, sue and say nothing more until they approach you about settling.

username_taken

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #4 on: September 19, 2017 12:13:45 AM »
If the company is incorporated or an partnership, one sues the legal entity.  If the company is a sole proprietorship, one sues the individual as a dba.

Not trying to be a smart ass, but what if the company is an Inc., and DBA as another?  Three years ago, they did business as "friendtrusted.com", and now they are Smith, Inc. but they DBA as gosmith.com? Just wanting to avoid confusion on my part, (mostly). And, thanks for the responses. Appreciated.

kevinmanheim

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #5 on: September 19, 2017 12:20:14 AM »
A corporation is a person.

A person can DBA as long as they follow state laws when presenting themselves as the DBA.

Even if they don't follow the state laws, they would still have corporate veil protection for the officers and directors. That is, as long as the officers and directors are treating the corporation's funds and assets as separate from their own.

Is it a small company? How many employees?

username_taken

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #6 on: September 19, 2017 01:31:57 AM »
Unknown number of employees. Less than 20 according to what I've found. I'm an LLC so I get the DBA, but my main concern is how they represent themselves. If I do a side gig as xxxxxxxxx llc dba, I know my whole corporation is open to suit.

username_taken

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #7 on: September 19, 2017 01:59:16 AM »
Again, not trying to create adversity where none exists. Just want as much information as I can get. Just in case.

CleaningUp

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #8 on: September 19, 2017 04:43:36 PM »
How they represent themselves; e,g, as XYZ, Inc. DBA ABC Marketing is irrelevant.

Once the "Inc." is attached to the name, they are a corporation and a single legal entity.

And, for those that are confused about corporations being treated as "persons" under the law, that view is the legal acrobatic on which you are entitled to sue them.  The law has to have some mechanism on which to base the resolution of legal disputes with corporations or partnerships.

kevinmanheim

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #9 on: September 19, 2017 08:22:37 PM »

And, for those that are confused about corporations being treated as "persons" under the law, that view is the legal acrobatic on which you are entitled to sue them.  The law has to have some mechanism on which to base the resolution of legal disputes with corporations or partnerships.
Sure, but in simple terms, a corporation is a person. If that person keeps their finances separate from the shareholders and officers, suing the responsible person is the only course of action.

If, however, you can prove the corporation is co-mingling funds with another person (an officer, employee, et al) you may be able to name the other person or persons as defendants -- or even allege civil conspiracy among all the persons, including the corporation.

The smaller the company, the more likely it is the head officer is using corporate accounts to pay private expenses. If it were me, I would take a chance and name the officer as a defendant. If they file a MTD based on the corporate veil, I would ask for limited discovery to determine if the officer used company funds to pay personal debts. A good defense attorney may be able to squash this tactic, but it's going to keep the officer up at night for a while -- which is, after all, the OP's goal in forcing a settlement of these valid claims. 

ghost

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Re: Question: Who do I list as defendant in TCPA petition?
« Reply #10 on: September 19, 2017 11:01:09 PM »
You can sue an executive of the company if they have knowledge of the telemarketing and do nothing or direct personal participation
Lets do this