We all knew this day would come. But we didn’t know it would hurt quite this badly.
After a months-long battle over the proper application of the TCPA, Credit One Bank has now endured the finality of a judgment–$190,000.00 for making some phone calls.
Not long ago, Credit One was riding high following a fantastic win in Minnesota—the Court in Roark determining that Credit One’s equipment was not subject to the TCPA and, even if it was, it had the right to make calls to the new subscriber of a phone line relying on consent provided by a prior subscriber for a “reasonable time.”
Yet, recalling the wisdom of Solon, no one is ever truly happy in TCPAWorld until they are dead. And Credit One saw its fortunes change drastically in the Jiminez case. Not only did the court conclude that its dialer actually was an ATDS—relying on the plainly-defunct 2003 and 2008 predictive dialer rulings nonetheless— the Jiminez court concluded that Credit One did not actually have the right to rely on the consent of a former customer after all. (Although I wonder aloud whether the argument was properly framed in NY, based on the Court’s order addressing the issue.) Either way this reversal of fortune is simply remarkable. Should. Not. Happen.
Still, Credit One battled and scraped and clawed, but it could not avoid judgment day. In Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 203613 (S.D.N.Y. Nov. 22, 2019) the court last week directed judgment to be entered against Credit One– $197k for 380 calls. $500.00 each. Pure and simple.
Brutally, the Court included within the judgment 42 attempted calls that were made to a disconnected phone line. Even though Plaintiff could not possibly have received those calls—and thus could not possibly have been harmed by those calls. Nonetheless, the court awarded $500.00 a call for mere attempts to a line that as not even in service. The Court reasoned tersely: “[I]t is the making of the call, not its receipt, that is the predicate for statutory damages liability under the TCPA.” (Dear Credit One: please appeal. Sincerely, TCPAWorld.com.)
So there you have it folks, as Croesus was learned, fate is fleeting here in TCPAWorld. One day you’re on top of the world. The next. Judgment day.
I guess we should give a shout out to Yitzchak Zelman, who represented Plaintiff in this case. Yitzchak joined us on the Unprecedented podcast a while back and explained his tactics and strategy on this one. Looks like he came out on top. Then again, fortunes change.