Eesh. This is so painful to see.
A district court in New Mexico just entered a $570,000.00 judgment against Defendants in a TCPA suit, trebling damages and awarding damages for violation of a New Mexico state law as well. So even though there were only precisely 200 calls at issue–an oddly round number– the Defendants suffered a judgment amounting to $2,850.00 a call!
In Mohon v. Spiller, et al. 2023 WL 6463477 (D. N.M. Oct. 4, 2023) Plaintiff sued alleging two groups of Defendants– those calling as “Rising Eagle” and those calling as “Health Advisors” called her phone without consent.
The Plaintiff alleged precisely 200 calls at issue–suspicious–and claims that precisely 100 of those calls were ATDS calls and 100 were prerecorded calls, which is just ridiculous in my view.
Nonetheless, since the Defendants did not show up to defend themselves the Court accepted these unlikely allegations as true. The Court also found that Plaintiff’s residential cell phone was on the DNC list and that the calls were made without consent.
All right fine. Now the fun part–damages.
For each call the Court first found Plaintiff was entitled to $500.00 under 227(b) of the TCPA. So that’s $100k.
Then the Court allowed Plaintiff to double dip and collect an additional $500.00 for each call under 227(c). So that should be another $100k but, instead, the court limited her to $50k but that was her original ask in the complaint.
Either way, we are up to $150k.
Next Plaintiff sued under 4 different sections of the New Mexico state law alleging 100 violations of each: N.M. Stat.
Ann. § 57-12-22(A), N.M. Stat. Ann. § 57-12-22(B)(1), § 57-12-22(C)(1) and § 57-12-22(C)(2).
Let’s break these down.
Section 57-12-22(A) prohibits “utiliz[ing] an automated telephone dialing or push-button or tone-activated address signaling system with a prerecorded message to solicit persons to purchase goods or services unless there is an established business relationship between the persons ….” N.M. Stat. Ann. § 57-12-22(A).
Second, Section 57-12-22(B)(1), which prohibits a person from “mak[ing] a telephone solicitation for a purchase of goods or services” “without disclosing within fifteen seconds of the time the person being called answers the name of the sponsor and the primary purpose of the contact.” N.M. Stat. Ann. § 57-12-22(B)(1).
Third, Section 57-12-22(C) makes it unlawful to “make a telephone solicitation of a residential subscriber whose telephone number has been on the national do-not-call registry, established by the federal trade commission, for at least three months prior to the date the call is made” or “use a method to block or otherwise intentionally circumvent a residential subscriber’s use of a caller identification service pursuant to the Consumer No-Call Act. N.M. Stat. Ann. § 57-12-22(C)(1), (C)(2).
Plaintiff in Mohon alleged the calls Defendants made–again, precisely 100 of them–violated all four of these sections at once. And the Court agreed.
The New Mexico statute authorizes a private right of action and $100.00 in statutory damages. So the Court granted Plaintiff $40,000.00 for those calls.
So thus far we have each call carrying 6 separate penalties– 2 under the TCPA and 4 under the New Mexico state statute.
But we aren’t done yet.
So far we are up to $190k. Remember, that’s $100k for 227(b), $50k for 227(c) and $40k for New Mexico state violations.
And now the final trick–the Court trebles damages!
It is well known that TCPA damages can be trebled where a Defendant is found to have willfully violated the TCPA. It turns out the New Mexico Unfair Practices Act (UPA) contains a similar provision: treble damages “up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice,” if the court finds that a defendant has “willfully engaged in the [complained of] trade practice.” N.M. Stat. Ann. § 57-12-10(B).
The Court had little trouble determining the Defendants did, in fact, violate the law willfully–again they didn’t show up to deny it!–so the Court trebeled damages to $570k.
So John C. Spiller II, Scott P. Shapiro, and Jakob A. Mears all now owe Ms. Mohon $570,000.00 joint and severally.
If these guys had attorneys I can only guess the damage would have been much less. But we will never know.
Take aways here:
- A single phone call may violate multiple sections of the TCPA and state law provisions–so watch out;
- Again state laws have teeth folks. Keep these things in mind and reach out to Troutman Amin, LLP if you have questions about restrictions in each state;
- Get yourself a good lawyer if you are facing a TCPA suit. The damages here are astronomical.