Author Topic: Federal judge thinks he is free to re-write the TCPA himself...  (Read 1542 times)

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rebuilder2006

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Federal judge thinks he is free to re-write the TCPA himself...
« on: November 06, 2017 06:34:23 PM »
On September 7, 2017 federal judge E. Richard Webber of the Eastern District of Missouri took it upon himself to re-write the TCPA's provision of $500 per violation - and awarded $10 per violation.

https://www.manatt.com/Manatt/media/Media/PDF/Newsletters/TCPA%20Connect/Golan-v-Veritas-Entertainment-LLC.pdf


Flyingifr

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #1 on: November 06, 2017 06:51:16 PM »
District Courts are the lowest level of Federal Courts - their decision s are not precedent and are seldom even persuasive to other Judges. That said, a Judge has the right to "interpret" the law. Some Judges interpret "Statutory Damages" to be "up to" the amount in the Statute. Others simply say that if Congress meant "up to" they would have SAID "up to" in the law (like in FDCPA).
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

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11181986

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #2 on: November 06, 2017 07:45:11 PM »
Talk about a click baiting thread title.

Most of us know that the US Constitution preempts the TCPA.  I would hope that an appeal is in the works, and this is a rare TCPA case that has a punches chance at going all the way up to the Supreme Court because it does have Constitutional implications coupled with the fact that it looks like there is very little in the way of case law/guidance on this issue.

This could be a fun one to watch.

BellEbutton

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #3 on: November 06, 2017 09:31:53 PM »
The judge did not take it upon himself to "rewrite" the TCPA.   Court precedent allows for the reduction of damages when the award is unreasonable and disproportionate to the offense.  Courts can also reduce damages if the award is disproportionate to the size of the company and a defendant's ability to pay.

He did not "interpret" the TCPA to be "up to" $500 per violation.  In fact, he refused to apply that reasoning.  He applied the standard of unreasonableness and disproportionality

At $500 per call, the award would have been over $1,600,000,000.  He stated that it was disproportionate to the offense. 

Kitten

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #4 on: November 06, 2017 11:06:31 PM »
Three million, two hundred thousand calls? (x500=1,600,000,000)

BellEbutton

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #5 on: November 07, 2017 01:29:48 AM »
Three million, two hundred thousand calls? (x500=1,600,000,000)

It was a class-action suit.   Based upon law, the judge was allowed to reduce the amount of damage.  So your point is...?

flaccito

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #6 on: November 07, 2017 02:03:11 AM »
It was a class-action suit.   Based upon law, the judge was allowed to reduce the amount of damage.  So your point is...?

That's what i was thinking too, a class-action is a whole different animal.

Depending on the size of the company, i can kind of see how $1.6 BILLION could be deemed as "excessive". That kind of judgment would probably put a lot of mom n' pop type companies out of business overnight.

CleaningUp

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #7 on: November 07, 2017 03:41:46 AM »
It's well established legal procedure to set fines that would not bankrupt the company being fined.

rebuilder2006

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #8 on: November 07, 2017 04:51:39 PM »
He clearly took it upon himself to re-write the law.

The provision of TCPA in question clearly states that the amount to be awarded is $500 per violation - it does not say up to $500 per violation - there is no ambiguity - and there is no discretion - it is $500 per violation.

If Congress had wanted that provision of the TCPA to state up to - they would have written it that way - they did not.

The district court has absolutely no authority to award anything less than want Congress clearly mandated in law.

The award is not discretionary.

A district court "has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms”.


11181986

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #9 on: November 07, 2017 05:10:34 PM »
Did you read the opinion? the Judge held that the damage award was unconstitutional ... the Constitution preempts the TCPA.  Now reasonable minds can differ if the award is Unconstitutional but the Judge did not re-write the law dude.

rebuilder2006

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #10 on: November 07, 2017 05:24:49 PM »
Did you read the opinion? the Judge held that the damage award was unconstitutional ... the Constitution preempts the TCPA.  Now reasonable minds can differ if the award is Unconstitutional but the Judge did not re-write the law dude.

I read the opinion... "dude"...

I am one of the very few who actually does before posting - and when commenting.

This judge tried to kick this lawsuit originally and dismissed it on several grounds - the Eight Circuit Court of Appeals reversed the judge on all grounds.

So he now tried to come up with a novel way to deprive the litigants of their statutorily mandated damages.

I suspect the Eight Circuit (and quite possibly the Supreme Court one way or the other) will again have to weigh in.

And like you said... reasonable minds can differ on what the judge did - and whether he exceeded his authority... etc. - like he did the first time.
« Last Edit: November 07, 2017 06:48:35 PM by rebuilder2006 »

11181986

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #11 on: November 07, 2017 07:28:48 PM »
Again, his decision is not novel. He specifically relied on U.S. v. Dish Network, LLC, 2017 WL 2427297 (C.D. Ill. Jun. 5, 2017) which reduced a TCPA damages award from 2.1 billion to 280 million because the 2.1 billion in damages violated the due process clause of the Constitution.

kevinmanheim

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #12 on: November 08, 2017 12:23:45 AM »
I think the judge got it right.

The plaintiffs were awarded $32 million for a 6 day calling campaign.

I don't think anyone was expecting to collect $1.6 billion.

Heck, they won't even collect $32 million. This is going to be settled for much less, or a BK filing will happen.

Kitten

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #13 on: November 08, 2017 03:50:17 PM »
It's not cruel, unusual, or excessive to sentence a natural person to death for murdering another natural person.

It is unconstitutionally excessive to sentence a natural person to death for double parking.

The question here is, is it unconstitutionally excessive to sentence a unnatural entity to death for violating the law 3 million times in six days? I suspect it's unclear enough that an appeals court will defer to the judgment of the trial court. But I'd lean towards 'kill it' if I were the trial judge.

BellEbutton

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #14 on: November 08, 2017 04:00:23 PM »
He clearly took it upon himself to re-write the law.

The provision of TCPA in question clearly states that the amount to be awarded is $500 per violation - it does not say up to $500 per violation - there is no ambiguity - and there is no discretion - it is $500 per violation.

If Congress had wanted that provision of the TCPA to state up to - they would have written it that way - they did not.


The judge referred to Texas v. American Blastfax in which the court interpreted the TCPA as providing for "up to" $500 per violation.

On page 5 of THIS ruling, the court stated:

"The court will NOT apply the reasoning of American Blastfax to this case.  The TCPA statute clearly states the damages are $500 per violation for violations using automated telephone equipment". 

So, the judge did NOT apply "up to" when deciding upon the award.