Author Topic: Federal judge thinks he is free to re-write the TCPA himself...  (Read 516 times)

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rebuilder2006

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #15 on: November 08, 2017 06:05:08 PM »
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.

Correct - that is what he states in his Opinion...

But that is effectively exactly what he did.

The statute mandates $500 per violation - he disregarded what Congress clearly mandated by coming up with a reason (his first attempt to kick the lawsuit didn't work because the Eight Circuit revered him on all grounds) - to only give a damage award of $10 (2% of what Congress mandated) per violation.

In any event this will surely be decided by the Eight Circuit yet again - and quite possibly the Supreme Court one way or the other.


Kitten

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #16 on: November 08, 2017 06:28:11 PM »
Correct - that is what he states in his Opinion...

But that is effectively exactly what he did.

I'm of the opinion that a large minority of the feral judges ignore the law in coming to a decision and only use it ex post facto in justifying their decision. (make that a majority in the 9th Circuit)
 
Richard POSner admitted it openly, AFTER he retired, but made thinly veiled references to it while sitting on the 7th Circuit bench. He spent an entire career substituting his opinions for those of lawmakers and the founding fathers, and nobody ever did a thing to stop him.
http://justicedenied.org/wordpress/archives/3967
« Last Edit: November 08, 2017 06:43:30 PM by Kitten »

Clydesmom66

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #17 on: November 08, 2017 06:34:28 PM »
In any event this will surely be decided by the Eight Circuit yet again - and quite possibly the Supreme Court one way or the other.

Doubtful.  The greedy lawyers are hopefully smart enough to realize they are NEVER going to actually collect 1.6 billion dollars from these 2 Defendants and the smart money is not in appealing it but in taking a large single pay out to settle the entire matter. 

The only ones making money in a class action venture are the lawyers and class action firms are especially good at gaming the system to the bend or break point.  They know exactly where the point is that they will start losing money on this deal and will stop filing appeals.  Chances that SCOTUS takes it are slim to none and even if they did if the defendants don't have 1.6 billion dollars the point is moot. 

If I were these 2 I would let them run up the bills via all the appeals then bankruptcy it out so they collect nothing for all their efforts.   
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Kitten

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #18 on: November 08, 2017 06:57:37 PM »
In the Opinion linked in the OP, the court admits that it cannot find any example of another court finding that $500 per violation violates Due Process. It goes on to point out that the 8th Amendment curbs on excessive punishment aren't applicable, and admits that Congress has the right to place a value on the inconvenience to consumers of robocalls.

Then the court goes on to set that aside and say that 1.6B is disproportionate to  the offense committed.
Well, if $500 isn't unconstitutionally disproportionate to doing it once, then how can $1.6B be unconstitutionally disproportionate for doing the same thing to 3.2M people?

11181986

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #19 on: November 08, 2017 07:12:59 PM »
In the Opinion linked in the OP, the court admits that it cannot find any example of another court finding that $500 per violation violates Due Process.

Incorrect.

From the opinion...

"Of the three cases which have reduced TCPA damages awards, only Dish Network, LLC, found the damage reduction comported with due process. Id. at 139. The other cases did not reduce damages under the Constitution. However, that does not foreclose the Court’s ability to reduce the damages award to comport with due process. The Court’s review of the applicable case law, supra, indicates the TCPA’s statutory damages clause is constitutional, but a specific damages award may be unconstitutional if it is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”
« Last Edit: November 08, 2017 07:19:58 PM by 11181986 »

11181986

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #20 on: November 08, 2017 07:17:43 PM »
Doubtful.  The greedy lawyers are hopefully smart enough to realize they are NEVER going to actually collect 1.6 billion dollars from these 2 Defendants and the smart money is not in appealing it but in taking a large single pay out to settle the entire matter. 

I checked PACER, a notice of appeal of the decision in the OP was filed.  It is a constitutional question of law where there is a scarcity of case law providing guidance - so it does have a punches chance of going up to SCOTUS.

BrokeBob

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #21 on: November 08, 2017 08:01:06 PM »
I'm of the opinion that a large minority of the feral judges ignore the law in coming to a decision and only use it ex post facto in justifying their decision. (make that a majority in the 9th Circuit)
 
Richard POSner admitted it openly, AFTER he retired, but made thinly veiled references to it while sitting on the 7th Circuit bench. He spent an entire career substituting his opinions for those of lawmakers and the founding fathers, and nobody ever did a thing to stop him.
http://justicedenied.org/wordpress/archives/3967

What else is new? 

I don't want to delve into politics, but I remember reading Bertrand Russel's History of Philosophy, which was written in the late 1930s and early 1940s.  He was an Englishman, and he mentioned the peculiar system in the US where the courts write the laws.  As they have since Marbury v. Madison

I remember an American History professor mentioning why he thought it foolish for the CSA to secede in 1861.  He said the South controlled the Supreme Court, which was more important than Congress and the Presidency, so why secede?

Same as it ever was. 

BellEbutton

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #22 on: November 09, 2017 06:29:31 AM »
Correct - that is what he states in his Opinion...

But that is effectively exactly what he did.

The statute mandates $500 per violation - he disregarded what Congress clearly mandated by coming up with a reason (his first attempt to kick the lawsuit didn't work because the Eight Circuit revered him on all grounds) - to only give a damage award of $10 (2% of what Congress mandated) per violation.

In any event this will surely be decided by the Eight Circuit yet again - and quite possibly the Supreme Court one way or the other.

I see your point, but case law shows that punitive damages may be reduced to ability to pay.   If the 8th Circuit agrees to hear the appeal, it will decide whether or not statutory damages can be reduced for the same reason.

You have to consider the fact that an award that exceeds a company's ability to pay can result in a bankruptcy.  Depending upon the company's debts, the class and its attorneys may not get a single penny.

CleaningUp

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #23 on: November 09, 2017 01:57:30 PM »

Depending upon the company's debts, the class and its attorneys may not get a single penny.



And that's the basic reason why courts are not in the business of bankrupting litigants.  The fine allowed for a legal absurdity, and the law abhors absurdity.

rebuilder2006

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #24 on: November 09, 2017 10:09:50 PM »
Doubtful.  The greedy lawyers are hopefully smart enough to realize they are NEVER going to actually collect 1.6 billion dollars from these 2 Defendants and the smart money is not in appealing it but in taking a large single pay out to settle the entire matter. 


As 11181986 has pointed out - a Notice of Appeal has already been filed.


rebuilder2006

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Re: Federal judge thinks he is free to re-write the TCPA himself...
« Reply #25 on: November 09, 2017 11:38:21 PM »
I'm of the opinion that a large minority of the feral judges ignore the law in coming to a decision and only use it ex post facto in justifying their decision. (make that a majority in the 9th Circuit)
 
Richard POSner admitted it openly, AFTER he retired, but made thinly veiled references to it while sitting on the 7th Circuit bench. He spent an entire career substituting his opinions for those of lawmakers and the founding fathers, and nobody ever did a thing to stop him.
http://justicedenied.org/wordpress/archives/3967

Thank you for posting that article by, now, former judge Posner.

It speaks the untold truth regarding pro se litigants in federal (and state) court.

And is a accurate and serious indictment of our judicial system.

 

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