Author Topic: TCPA Sample Complaint  (Read 3881 times)

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FEWSWEG

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TCPA Sample Complaint
« on: August 07, 2009 11:10:20 PM »
Doing some research in some TCPA cases in Ohio I noticed one name that kept popping up in appeals cases. I looked at the county records and did a search online for his name and found that since about the year 2000 it looks like he has filed at least 40 TCPA complaints, including 7 this year. It looks like he has two telephone lines set up and records every call on those lines.

Here is one of his recent complaints. From the time that it was filed until the time that he dismissed the case was about six weeks. I would imagine that he dismissed it because they sent him a check. I think I took out all the identifying information. Please let me know if I missed something.

COMPLAINT FOR MONEY DAMAGES
JURY DEMAND ENDORSED HEREON
NOW COMES PLAINTIFF XXXX, and brings this action to recover monetary damages against Defendants, arising from the unlawful advertising telephone calls that Defendants made to Plaintiff at his residence in disregard and violation of well-established Federal and Ohio laws prohibiting such calls, and other unlawful activities of Defendants.
The Parties
I. Plaintiff XXXXXXXX ("XXXXXX" or "Plaintiff') is a living person who resides at the address indicated in the caption hereinabove, which is in County, Ohio. At his residence, Plaintiff has a telephone connected to an outside telephone line with the telephone number XXXXXXXX.
2. At all times relevant hereto and upon information and belief, Defendant XXXXXXX, Inc. ("XXX") is a for profit entity and at all times relevant hereto did business as a vendor of burial insurance policies.
3. At all times relevant hereto and upon information and belief, Defendant John Doe is an officer of Defendant Golden Senior Advisors, Inc. and was directly involved in the business of selling goods and/or services, including the sale of burial insurance policies, which are goods and/or services, to consumers in County, Ohio through the use of advertising telephone calls placed to consumers, including Plaintiff.
4. Defendants are subject to, and required to abide by, the laws of the United States and the State of Ohio, which include the Telephone Consumer Protection Act of 1991, 47 U.S.C. §227, et seq. ("TCPA") and its related regulations, including 47 C.F.R. §64.1200 ("TCPA Regulations"), as well as the opinions, regulations and orders issued by the Federal Communications Commission to implement and enforce the TCPA, the telemarketing regulations issued by the Federal Trade Commission, 16 C.F.R. §310.4(d)(2), and the Ohio Consumer Sales Practices Act, R.C. § J345.02(A) ("CSPA"), and applicable provisions of the Ohio Administrative Code, including O.A.C. §109:4-3-II(A)(l).
Jurisdiction and Venue
5. This Court has jurisdiction over the parties and claims under the Ohio and Federal laws cited herein. Venue is proper in this Court because all of the claims for relief arose in County, where Plaintiff resides.
Plaintiffs’ Claims
6. Each of the following court decisions were on file in the Office of the Ohio Attorney General, within the Public Inspection File (hereafter "PIF") as of the dates listed herein:
(a) PIF #2218, Charvat v. Doucet (Issued: February 23, 2004; PIF: February 27, 2004), Franklin C.P. Court Case No. 03CVH08-922I , unreported;
(b) PIF #1882, Charvat v. Continental Mortgage Services, Inc. (Issued: June 1,2000; PIF: June 2, 2000), Franklin c.P. Court Case No. 99CVHI2-10225, unreported;
(c) PIF #2344, Burdge v. Satellite Systems Network, LLC, (Issued: May II, 2005; PIF: May 12,2005), Fairfield County Municipal Court Case No. 2005 CVF 00243, unreported;
and
(d) PIF #2197, State ex rei. Petro v. Wyatt dba Ohio Tree Transplant, (Issued: November 18,2003; PIF: November 19,2003), Delaware County Court C.P. 03-CV-H-IO-726, unreported.
7. Prior to April 29, 2009, Plaintiff had never done any business with Defendants.
8. Upon information and belief, on April 29, 2009 at approximately 8:29 p.m., one or more unknown live representatives and agents of Defendant caused to be placed a prerecorded call to Plaintiffs residential telephone number of xxx-xxx-xxxx (the "First Call") for the commercial purpose of selling Defendants' burial insurance policies, which are consumer goods and services. This call was placed without Plaintiffs prior express permission.
9. Upon information and belief, during and/or in regard to the First Call, Defendants willfully:
Failed to voluntarily state the calling entity's duly registered full business name;
Failed to voluntarily state the calling entity's telephone number; and
Failed to state at the beginning of the call that the purpose was to make a sale.
10. Upon information and belief, on May 14,2009 at approximately 3:15 p.m., one or more unknown live representatives and agents of Defendant caused to be placed a prerecorded call to Plaintiffs residential telephone number of 614-895-8940 (the "Second Call") for the commercial purpose of selling Defendants' burial insurance policies, which are consumer goods and services. This call was placed without Plaintiffs prior express permission.
II. Upon information and belief, during and/or in regard to the Second Call, Defendants willfully:
Failed to voluntarily state the calling entity's duly registered full business name;
Failed to voluntarily state the calling entity's telephone number; and
Failed to state at the beginning of the call that the purpose was to make a sale.
12. Each of Defendants' First and Second Calls to Plaintiffs residence was an "unsolicited advertisement," as defined in the Telephone Consumer Protection Act, 47 U.S.C. §227(a)(5).
13. Upon information and belief, Defendants and their representatives acted with a common plan, scheme or design with others unknown to place the First and Second Calls to Plaintiffs residential telephone numbers.
14. Upon information and belief, Defendants cooperated in, directed, authorized, requested, aided, encouraged, ratified and/or adopted the acts of the agents and/or representatives who placed the First and Second Calls to Plaintiffs residence.
15. Defendants and their agents and representatives acted of their own free will in engaging in the foregoing activities, and intended to contact Plaintiffs residence by telephone at least two times to solicit the sale of Defendants' consumer goods or services.
16. Upon investigation, Plaintiff identified the Defendants as the business entity which had initiated the First and Second Calls and sent a letter to Defendants on May II, 2009 which, among other things, demanded that Defendants send a copy of Defendants' "Do-Not-Call Maintenance Policy" to Plaintiff. Defendants responded to the letter, but never sent a copy of their policy to Plaintiff.
17. In regard to Defendants' First and Second Calls to Plaintiffs residence:
(a) Each Defendant was a "supplier" as defined in R.C. § 1345.01(C);
(b) Plaintiff was a "consumer" as defined in R.C. § 1345.01(0); and
(c) Each of the two calls was a "consumer transaction" as defined in R.C. § 1345.01(A).
FIRST CAUSE OF ACTION
First Call- Violation of the TCPA and TCPA Regulations
18. Plaintiff incorporates, as if fully rewritten herein, all of the foregoing paragraphs.
19. In placing the First Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without having Plaintiffs prior express consent, Defendants willfully violated 47 U.S.C. §227(b)(l)(B) and 47 C.F.R. §64.1200(a)(2) and Plaintiff is entitled to an award of statutory treble damages in the amount of $1 ,500.
20. In placing the First Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's registered full entity name, Defendants willfully violated 47 U.S.C. §227(b)(3)(8) and (d)(3)(A); 47 C.F.R. §64.1200(b)(I) and (d)(4) and Plaintiff is entitled to an award of statutory treble damages in the amount of $1 ,500.
21. In placing the First Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's telephone number, Defendants willfully violated 47 U.S.C. §227(b)(3)(8) and (d)(3)(A); 47 C.F.R. §64.1200(b)(2) and (d)(4) and Plaintiff is entitled to an award of statutory treble damages in the amount of $1 ,500.
SECOND CAUSE OF ACTION
First Call- Violation of the CSPA, R.C. §1345.02(A)
22. Plaintiff incorporates, as if fully rewritten herein, all of the foregoing paragraphs.
23. In placing the First Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without having Plaintiffs prior express consent, Defendants willfully violated 47 U.S.C. §227(b)(l)(8) and 47 C.F.R. §64.1200(a)(2), which constitutes an unfair or deceptive act and a knowingly committed violation of § 1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of$200 pursuant to R.C. § 1345.09(8) and an award of his reasonable attorney's fees and costs pursuant to R.C. § 1345.09(F).
24. In placing the First Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's registered full entity name, Defendants willfully violated 47 U.S.C. §227(b)(3)(8) and (d)(3)(A); 47 C.F.R. §64.1200(b)(l) and (d)(4), which constitutes an unfair or deceptive act and a knowingly committed violation of § 1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. § 1345.09(8) and an award of his reasonable attorney's fees and costs pursuant to R.C. § I 34S.09(F).
2S. In placing the First Call to deliver a telephone solicitation to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's telephone number, Defendants willfully violated 47 U.S.C. §227(b)(3)(B) and (d)(3)(A); 47 C.F.R. §64.1200(b)(2) and (d)(4), which constitutes an unfair or deceptive act and a knowingly committed violation of R.C. § 134S.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. § 134S.09(B) and an award of his reasonable attorney's fees and costs pursuant to R.C. § 134S.09(F).
26. In placing the First Call to deliver a telephone solicitation to Plaintiffs residence, and failing to begin the call with a statement that the purpose of the call is to make a sale, Defendants knowingly violated 16 C.F.R. §310.4(d)(2), O.A.C. §109:4-3-II(A)(I) and R.C. § 134S.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. §134S.09(B) and an award of his reasonable attorney's fees and costs pursuant to R.C. § 134S.09(F).
THIRD CAUSE OF ACTION
Second Call - Violation of the TCP A and TCP A Regulations
27. Plaintiff incorporates, as if fully rewritten herein, all of the foregoing paragraphs.
28. In placing the Second Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without having Plaintiffs prior express consent, Defendants willfully violated 47 U.S.C. §227(b)(I)(B) and 47 C.F.R. §64.1200(a)(2) and Plaintiff is entitled to an award of statutory treble damages in the amount of $1 ,SOO.
29. In placing the Second Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's registered full entity name, Defendants willfully violated 47 U.S.C. §227(b)(3)(B) and (d)(3)(A); 47 C.F.R. §64.1200(b)(I) and (d)(4) and Plaintiff is entitled to an award of statutory treble damages in the amount of$I,500.
30. In placing the Second Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's telephone number, Defendants willfully violated 47 U.S.C. §227(b)(3)(B) and (d)(3)(A); 47 C.F.R. §64.1200(b)(2) and (d)(4) and Plaintiff is entitled to an award of statutory treble damages in the amount of$I,500.
FOURTH CAUSE OF ACTION
Second Call- Violation of the CSPA, R.C. §1345.02(A)
31. Plaintiff incorporates, as if fully rewritten herein, all of the foregoing paragraphs.
32. In placing the Second Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without having Plaintiffs prior express consent, Defendants willfully violated 47 U.S.c. §227(b)(1)(B) and 47 C.F.R. §64.1200(a)(2), which constitutes an unfair or deceptive act and a knowingly committed violation of § 1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. § 1345.09(B) and an award of his reasonable attorney's fees and costs pursuant to R.C. § 1345.09(F).
33. In placing the Second Call to deliver a telephone advertising solicitation call to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's registered full entity name, Defendants willfully violated 47 U.S.C. §227(b)(3)(B) and (d)(3)(A); 47 C.F.R. §64.1200(b)(1) and (d)(4), which constitutes an unfair or deceptive act and a knowingly committed violation of § 1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. § 1345.0<!(B) and an award of his reasonable attorney's fees and costs pursuant to R.C. § I 345.09(F).
34. In placing the Second Call to deliver a telephone solicitation to Plaintiffs residence, without providing to Plaintiff voluntarily during the course of the call the caller's telephone number, Defendants willfully violated 47 U.S.C. §227(b)(3)(B) and (d)(3)(A); 47 C.F.R. §64.1200(b)(2) and (d)(4), which constitutes an unfair or deceptive act and a knowingly committed violation of R.C. § 1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. § 1345.09(B) and an award of his reasonable attorney's fees and costs pursuant to R.C. §1345.09(F).
35. In placing the Second Call to deliver a telephone solicitation to Plaintiffs residence, and failing to begin the call with a statement that the purpose of the call is to make a sale, Defendants knowingly violated 16 C.F.R. §310.4(d)(2), O.A.C. §109:4-3-II(A)(I) and R.C. §1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. § 1345.09(B) and an award of his reasonable attorney's fees and costs pursuant to R. C. § 1345. 09(F).
FIFTH CAUSE OF ACTION
Violation of the TCPA and TCPA Regulations
36. Plaintiff incorporates, as if fully rewritten herein, all of the foregoing paragraphs.
37. In failing to send their Do-Not-Call Maintenance Policy to Plaintiff upon his demand, Defendants willfully violated 47 U.S.C. §227(c)(5)(B) and 47 C.F.R. §64.1200(d)(\) and Plaintiff is entitled to an award of statutory treble damages in the amount of $1 ,500.
SIXTH CAUSE OF ACTION
Violation of the CSPA, RC. §1345.02(A)
38. Plaintiff incorporates, as if fully rewritten herein, all of the foregoing paragraphs.
39. In failing to send their Do-Not-Call Maintenance Policy to Plaintiff upon his demand, Defendants willfully violated 47 U.S.C. §227(c)(5)(B) and 47 C.F.R. §64.1200(d)(I), which constitutes an unfair or deceptive act and a knowingly committed violation of R.C. §1345.02(A) and Plaintiff is entitled to an award of statutory damages in the amount of $200 pursuant to R.C. §1345.09(B) and an award of his reasonable attorney's fees and costs pursuant to R.C. § 1345.09(F).
PRAYER FOR RELIEF
WHEREFORE, Plaintiff hereby prays for the following relief on the foregoing Causes of
Action against Defendant:
A. For Plaintiff's First Cause of Action, an award of statutory damages in the amount of $500 for each of Defendant's violations of the TCPA (totaling $1,500) and an award of statutory trebled damages in the amount of $1,000 for each of Defendant's knowing and/or willful violations of the TCPA (totaling $3,000).
B. For Plaintiff's Second Cause of Action, an award of statutory damages in the amount of$200 for each of Defendant's knowing violations of the CSPA (totaling $800) and his reasonable attorney fees;
C. For Plaintiff's Third Cause of Action, an award of statutory damages in the amount of$500 for each of Defendant's violations of the TCPA (totaling $1,500) and an award of statutory trebled damages in the amount of $1 ,000 for each of Defendant's knowing and/or willful violations of the TCPA (totaling $3,000).
D. For Plaintiff's Fourth Cause of Action, an award of statutory damages in the amount of$200 for each of Defendant's knowing violations of the CSPA (totaling $800) and his reasonable attorney fees;
E. For Plaintiffs Fifth Cause of Action, an award of statutory damages in the amount of $500 for each of Defendant's violations of the TCPA (totaling $500) and an award of statutory trebled damages in the amount of $I,OOO for each of Defendant's knowing and/or willful violations of the TCPA (totaling $1,000).
F. For Plaintiffs Sixth Cause of Action, an award of statutory damages in the amount of $200 for each of Defendant's knowing violations of the CSPA (totaling $200) and his reasonable attorney fees;
G. For all the foregoing causes of action a cumulative award against all Defendants, jointly and severally, in favor of Plaintiff for the total amount of $12,300, costs, and Plaintiffs attorney fees.
H. A permanent injunction against Defendants prohibiting them from soliciting any consumer via a telephone call in violation of any of the FCC's TCPA regulations and the Ohio CSPA.
I. All such other relief, legal and equitable, as permitted by law.
Respectfully submitted,
JURY DEMAND
Plaintiff hereby demands a trial by jury on all of his claims against Defendants.
"As Mr. Typing test said..."

dls7406

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Re: TCPA Sample Complaint
« Reply #1 on: August 07, 2009 11:44:42 PM »
I am sure someone will mention the words "vexatious litigant" shortly due to the shear volume of cases with his name attached.

Along that line of thought, is it actually vexatious to file so many complaints if they basis is legitimate and the plaintiff makes a reasonable effort to settle such claims prior to filing suit?

I have not personally had to address this matter as I have never had to file yet. Perhaps "vexatious enforcer of rights" is a better term.

FEWSWEG

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Re: TCPA Sample Complaint
« Reply #2 on: August 08, 2009 12:53:48 AM »
I just check the county records. He has 96 complaints filed. He had 2 file in 98, 5 in 99, and the numbers grew from there. One year he filed 15 complaints.

From what I remember, he won in most of his appeals, at least in part.
"As Mr. Typing test said..."

Newryman

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Re: TCPA Sample Complaint
« Reply #3 on: August 08, 2009 01:11:45 AM »
I just check the county records. He has 96 complaints filed. He had 2 file in 98, 5 in 99, and the numbers grew from there. One year he filed 15 complaints.

From what I remember, he won in most of his appeals, at least in part.

http://www.ca6.uscourts.gov/opinions.pdf/09a0142p-06.pdf


dls7406

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Re: TCPA Sample Complaint
« Reply #4 on: August 08, 2009 02:19:13 AM »
Thanks Newryman. That was a good read.

On an iteresting note, I'm suprised the court didn't impose the defendant's court costs against him since his legal argument was defeated in part by not one, but two precedents he himself had set.

See Tex, even I have my limits.

cracrap

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Re: TCPA Sample Complaint
« Reply #5 on: August 08, 2009 02:57:46 AM »
1. in order to be a vexatious litigant, he would have had to have lost a predetermined number of cases decided by his local rules of civil procedure...
2. he did not lose his cases, he just wasnt awarded the maximum in statutory damages that he alleged
3. his 6th circuit federal ruling against him was in oppostion to the  state court decision that was in his favor on the same claim
..u have to be aware of his different claims and under what sections he is claiming relief under, as they all vary ...

say nope to dope...ugghh to drugs...and God bless Ronald Reagan!!!


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this really is not a spectator sport ... you have to know what your doing ... or you will get in very hot water very quickly

dls7406

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Re: TCPA Sample Complaint
« Reply #6 on: August 08, 2009 03:16:06 AM »
Thanks for the clarification.

Newryman

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Re: TCPA Sample Complaint
« Reply #7 on: August 08, 2009 03:18:40 AM »
You have too try exceptionally hard and severely annoy the judges to the point of driving them insane to be classed as a VL. It really isn't that easy of an award to gain if you wish to become notorious there are much quicker and easier ways.

Kitten

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Re: TCPA Sample Complaint
« Reply #8 on: August 08, 2009 03:50:14 AM »
If filing 100 lawsuits in ten years were enough to make you a VL, then Asset Acceptance and RIAA would be VLs a thousand times over.

dls7406

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Re: TCPA Sample Complaint
« Reply #9 on: August 08, 2009 04:14:55 AM »
I had never looked into the definition, but I knew it existed. Thanks for the cliffnotes.

Avery

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Re: TCPA Sample Complaint
« Reply #10 on: August 08, 2009 03:54:58 PM »
If filing 100 lawsuits in ten years were enough to make you a VL, then Asset Acceptance and RIAA would be VLs a thousand times over.

This.  Add every other aggressive CA or JDB to that list as well.  There are some CA's around here that file that many suits in a month.

 

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