Once again the TCPA + state law mini-TCPA claims have lead to a massive default judgment in a suit where the defendants did not show up to defend themselves.
And notice the PERSONAL liability component to this one.
In Cacho v. Amity One Debt Relief, et al. 2024 WL 4594177 (W.D. Tex Oct. 24, 2024) the Defendants allegedly made 15 calls to the Plaintiff without consent in violation of the TCPA and section 302.101 of the Texas Business and Commerce Code (“TBCC”).
The defendants– both the company alleged of making the calls and its CEO, a guy named Ariyo Mackay–were both apparently sued and served but didn’t show up to defend themselves.
As a result the Plaintiff moved for a default judgment and after considering the claims in the complaint the Court agreed to enter a judgment against BOTH Amity and Mackay in the amount of $88,405.00.
Here is the breakdown:
a. $5,500.00 in statutory damages for eleven violations of 47 U.S.C. § 227(b) pursuant to § 227(b)(3)(B);
b. $7,500.00 in statutory damages for fifteen violations of 47 U.S.C. § 227(c) pursuant to § 227(c)(5)(B); and
c. $75,000.00 in damages for fifteen violations of Section 302.101 of the Texas Business and Commerce Code pursuant to Section 302.302 of the Texas Business and Commerce Code.
Notice a couple of things here.
The TCPA violations could have resulted in even higher damages but the Court declined to treble the award.
The Texas state claim actually made up the bulk of the damages here. That claim has a pretty low threshhold:
This provision of Texas law provides that a “seller may not make a telephone solicitation from a location in this state or to a purchaser located in this state unless the seller holds a registration certificate for the business location from which the telephone solicitation is made.” Tex. Bus. & Com. Code § 302.101. Courts have interpreted other provisions of the TBCC as creating a private right of action for violations of the TBCC’s registration certificate requirement.
Plaintiff has also sufficiently alleged that Defendants violated the TBCC. As already established, Plaintiff has sufficiently pleaded that Defendants called him at least fifteen times. Further, Plaintiff alleges he was physically present in El Paso, Texas for all fifteen phone calls he received from Defendants, and that his cell phone number is a “Texas area code … telephone number.”Compl. ¶¶ 67–69. Plaintiff further states that he searched the Texas Secretary of State’s Telephone Solicitors Search system for Defendants and did not find an entry for them. Id. ¶¶ 70–72. Plaintiff’s allegations, taken together, are more than sufficient to allege that Defendants violated the TBCC.
Eesh.
At $5,000.00 a pop folks really do not want to mess with Texas. Notably, however, the registration requirement has a bunch of exemptions. Would one have helped defendants? Maybe. But they didnt hire a lawyer– so they lose! Ha.
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Stop it…. It’s a default judgement. They will never get paid.
Oh boy, just a matter of time before this low-life (don’t worry I’ll back it up) showed up here in TCPA World…
So Ariyo Mackay (aka Chris Mackay) has a pretty eye-opening, if not downright disturbing backstory. So let’s DEEP DIVE: Ariyo Mackay…
Mackay was deeply involved in numerous telemarketing/direct mail scams along with others. However, thanks to the New Mexico AGs Office he was brought to justice and banned from doing business in the state PERMANENTLY!
“BAN ON SECURED AND UNSECURED RELIEF PRODUCTS AND SERVICES:
1. IT IS ORDERED that Settling Defendant is permanently restrained and enjoined from:
A. advertising, marketing, promoting, offering for sale, or selling, any secured or unsecured debt relief product or service in the State of New Mexico; and
B. assisting others engaged in advertising marketing, promoting, offering for sale, or selling, any secured or unsecured debt relief product or services in the State of New Mexico.”
“PROHIBITION AGAINST MISREPRESENTATIONS RELATING TO FINANCIAL PRODUCTS AND SERVICES:
2. IT IS FURTHER ORDERED that Settling Defendant, his partnerships, corporations, sole proprietorships, officers, directors, agents, employees, agents, attorneys, and all other persons in active concert or participation with him, who receive notice of this Order, whether acting directly or indirectly in connection with advertising, marketing, promoting, offering for sale, or selling an financial product or service, are hereby permanently restrained and enjoined from misrepresenting or assisting others in misrepresenting, expressly or by implication, any material fact to any consumer located in the State of New Mexico…”
There were also monetary penalties – approx $50K which as we all know are rarely satisfied (and in this case pathetically small, since per the NM AGs estimates he was raking in $30-50K/monthly) but in this case, one can only, hope just maybe…
But, as a mere commenter, (maybe time for a paid position as a dirt-digging researcher ‘cough, cough’ LOL), I don’t expect anyone to take my word for it, so I’ll provide the actual court docs. Well worth the read, my favs are pg’s … ahhh heck the whole thing is a real page turner:
https://storage.courtlistener.com/recap/gov.uscourts.nmd.302574/gov.uscourts.nmd.302574.187.0.pdf
So since he was banned from ripping of New Mexico residents, he’s just started new ‘ventures’ here in SoCal. Hence, this case TCPA World has brought to our attention – Thanks Eric!!