As I have not had a chance to fully compile the list of every Small Claims Court in the United States yet, please visit this list until such time. If and when I get my list fully compiled, I shall be including a lot of extra data such as links to the applicable court rules and which courts allow the filing of claims online as mine does.
Suing Telemarketers - Simple and Cheap
When most people think about the process of suing a business entity, they naturally consider it a complicated and expensive process. They consider having to find an attorney who specializes in the particular area of law, the costs for such and weigh it against the potential gain. Forget all that when it comes to suing telemarketers!
For those individuals like me who have succesfully prosecuted cases against telemarketing firms, there is little need for an attorney. (A cover-my-posterior caveat: I am not an attorney, so I cannot legally advise you. Whenever you are considering legal action, it is always advisable that you consult an attorney. Personally, I have never needed one when filing claims against telemarketers, but you may wish to consider doing so.) The key is that the best venue for filing suit against a telmarketer is in your local Small Claims Court. The only fees you must pay are the filing fees (varies upon venue and amount, but generally is somewhere around $50) and the fee to perform service of process (anywhere from $10 to $100 depending upon whether or not you have the court serve the telemarketer via certified mail or you have a law enforcement officer or other process server handle such). When the potential gain is thousands of dollars, what is a hundred bucks?
I have personally filed four claims in Small Claims Court against telemarketers. I have been paid on three of them (the fourth was against SBC and they gave me such a runaround on the process serving - BUT they stopped calling) that I let that one slide. Of the three cases where I was paid, the following were the results:
- Filed a claim against a telemarketing firm based in Florida (Health Benefits Direct) for $1500. This amount was based upon two calls made after I told them to stop calling and their failure to provide me with a copy of their Do Not Call Policy. I settled out of court for $600.00 prior to the trial date.(Initial Cost to me: $55)
- Filed a claim against a mortgage brokerage firm in southern California (due to settlement agreement, I cannot reveal their name) for $4500. This amount was based upon seven calls made after I told them to stop calling and their failure to provide me with a copy of their Do Not Call Policy and their failure to maintain a Do Not Call List. I settled out of court for $2000.00 prior to the trial date. (Initial Cost to me: $80)
- Filed a claim against a mortgage brokerage firm in southern California (Country Club Mortgage) for $3500. This amount was based upon five calls made after I told them to stop calling and their failure to provide me with a copy of their Do Not Call Policy and their failure to maintain a Do Not Call List. I received a judgment for the the full amount of $3500, plus $60 in court costs. (Initial Cost to me: $60)
Adding up the above numbers, you can see that I invested $195 (or $250, if you consider the SBC claim that I let go) and received a total of $6160.00. Such is obviously a pretty good return on my investment and I doubt I spent more than three hours total on everything (five hours if you factor in the time I had to waste sitting in the court on the last action). Please also note that my local Small Claims Court allowed me to file everything through an online form. I didn't even have to go to the bloody court house, except in the one case where the telemarketer didn't bother to settle. So what do I do with the money? Well, I have been torn. On one hand, it seems a pretty smarmy way to make some money. On the other hand, these jerks are violating the law. I came to a compromise. Some goes to my child's future education; some goes to buy supplies for our troops stationed in Iraq, Afghanistan and Djibouti; some goes to basic household things. (And of course some goes to Uncle Sam as it is taxable income!). (UPDATE: I have been informed that this is not necessarily considered taxable income, but I prefer to be safe and treat it as such. Feel free to consult a CPA.)
Remember, I am not an attorney. I discovered this information on the internet and learned through trial and error how to go about the process. Just like you, I become incensed when I get those calls and they will not stop. I decided that the only way that these firms (especially the mortgage firms) will stop their behavour is if more and more people avail themselves of their right to private action. Here is how you go about it:
1. Log the Calls
This does not need to be a complex process at all. Either utilize one of the tools I provide on this website or simply keep a notebook by the telephone. Each time a telemarketing call comes through you want to do the following:
- If you have Caller ID, mark down the telephone number and the caller information as presented on Caller ID.
- Mark down the time and date of the telephone call.
- If your telephone service provider provides inbound caller information (as my Vonage Service does, make a note in your notebook to make a copy of the applicable telephone records.
- Be nice to the telemarketer. Ask them to repeat their name, number and who they are calling for (act like you are a little hard of hearing if they seem suspicious). Ask them if they have a website. Sound like you are actually interested in what they are selling.
- Once you have gotten the aforementioned information, inform them that you are exercising your rights under the TCPA and that they must 1) provide you with a written copy of their Do Not Call Policy within the next few weeks and 2) they must place you on their Do Not Call List. (Please note: Telemarketers are allowed at least one "oops" phone call after you tell them not to call anymore. You cannot count this "oops" call as a violation.) Mark in your notebook that you have made these requests. Please mark any additional information (e.g. they were rude, they swore at you, they hung up on you).
- If I was able to get their website address - or such is easily figured out via Google - I like to follow up the telephone call by sending an email (preferably to an officer of the company) reiterating my demand for a copy of the Do Not Call Policy and that I be placed on their Do Not Call List.
- In most cases, you will never hear from the telemarketer again. This is a good thing. If they do not send you a copy of their Do Not Call Policy within a few weeks, you can assume they are not going to. Regardless of whether or not they call you again, you can sue them for failure to provide the Do not Call Policy. Personally, I do not bother as my goal has been met - they are no longer calling me. Nevertheless, they would be out of complaince, thus an easy $500 for you.
- Each time you hear from the telemarketer (after the one "oops" call), they are subject to a $500 fine payable to you. DO NOT accept what they say about their ridiculous assertions that they have 30 days to process such a request. The law is quite clear. In fact the Direct Marketing Association (which seeks to advance the interests of telemarketers and similar folks) has this page which spells it out rather clearly. (In fact I submitted this page as evidence against one of the telemarketing firms.) I like to send emails to the company after each call. It takes only a moment and shows that you have made an extra effort to assert your rights. Usually the emails I get back are nasty: "you are a sue-happy scumbag, yadda, yadda, yadda". Ignore the vitriole, but save the email. Judges in Small Claims Court love to see this stuff as it is further evidence of the "scuminess" of these folks.
2. Know and follow the local Small Claims Court rules
Remember, the purpose of Small Claims Court is to give the average person or business the right to pursue legal action without all the encumbrances of Superior/Federal Court. I must point out that when I erroneously made the statement that attorneys are not allowed in a small claims courtroom. I have been quite correctly admonished by a few attorneys on this matter - most specifically by Laura Petelle. Each jurisdiction is a little bit different. Some are highly restrictive as to when an attorney can represent a party in the case, others are not. As stated before: "trust, but verify". I am not an attorney, so you need to be sure to check the local court rules and consider consulting with an attorney. I can tell you from my (albeit limited) experience that judges hate telemarketers just as much as you and I do.
- Know the upper limit for damages. There is a wide variance amongst the states. In the coming days I shall post this information directly, but the amounts are as wide as around $2000 to over $10,000 in damages that you can seek.
- Generally, you are required to make a demand letter for the applicable amount before filing a claim with the Small Claims Court. Be sure in your demand letter that you spell out each violation in detail and indicate the total you are seeking. This is also the point wherein you can make a settlement offer to keep fromgoing to court.
- You must address the issue of venue. Some telemarketing firms will attempt to say that you have to sue them in their locale. From my experience, this is simply not true. Their actions caused you "damage" in your county, so you should be able to sue them in your county Small Claims Court (I have been receiving some conflicting information on this, so please check back in a few days after I get some clarification). Be sure to verify this information with your local Small Claims Court.
- Be very careful with the service of process. If the defendant is not properly served, your case will be delayed. Additionally, you MUST serve the proper entity. In my state of California, I get the information from the Secretary of State's website. Many states are the same wherein they shall display the Agent for Service of Process. Although you are suing Acme Telemarketing Company, you are required to serve their official Agent for Service of Process. Note that if your Small Claims Court will serve the telemarketer via certified mail (as my local court does), you may wish to choose this option first. It is generally cheap ($10). If they avoid the certified letter you can always find a process server.
3. Prepare Your Case and Be Ready for Court
I obviously do not know all the court rules, however the following guidelines will generally serve you well in preparing and prosecuting your case in court. (As always, consult your local Small Claims Court. Many of such will have something called a Small Claims Advisory Clinic or the like. Utilize their services as they are free and they can answer many of your questions as to procedure - they cannot provide legal advice, however.)
- Organize all your evidence in chronological order. Create a cover sheet which identifies each applicable item. Be sure it is clear and concise (unlike TV, Small Claims actions rarely last more than a few minutes - judges DO NOT like to have to wade through documents that are poorly organized).
- Suggested evidence to include: a copy of the TCPA statute (as noted earlier), a copy of the Direct Marketing Association guidelines (see above), a copy of all your phone bills (if you have inbound call reporting like I have) with the applicable calls highlighted, a copy of your phone logs that you keep by the telephone. I shall be posting some case law references and some information from federal rsources in the next several days to forestall efforts by telemarketers for fighting venue, applicability, etc.
- Before you go to court: Make a copy of your evidence for the court and for the defendant. Eat a solid meal (do not drink a lot of coffee). BE ON TIME. Dress appropriately: no hats, shorts, etc. You do not need to wear a suit, but you should be presentable. Picture what you would look like upon first meeting your spouse's parents.
- When you are in court: DO NOT talk to the defendant. Everything goes through the judge. Hand all materials to the court clerk or the bailiff. DO NOT approach the bench unless the judge orders you too. Speak calmly and clearly. It is important to note that Small Claims Courts are frequently over-worked. The judge want to clear the day's case load as quickly as possible. Do not get into long-winded explanations. Best rule of thumb? Stick to the facts. You may be a little nervous your first time, such is okay. Everybody is. Just know that it will be over in a very few minutes.
The information provided on KilltheCalls.com is intended for informational purposes only, please read our legal notice here.
The KilltheCalls.com website is now under new ownership. The new owners remain dedicated to stopping telemarketers and all their dirty tricks. In the coming months you will likely see a number of changes come to this site we thank you for your patience and understanding as we release these changes.
Figuring Out Who Telemarketers Are
Reverse Phone Searches for Telemarketers
About Foreign Call Centers
Do Not Call Enforcement A Joke
Junk Faxes, Stop the Spam
Pollitical Calls & Complaints
All Other Articles and Postings
CCR…Cellular Communication Revival
Call Killing Apps
Unwanted Text Messages
State Laws Hope To Close The Loopholes
TimeShare Telemarketing Scams Get A Scolding
Indie Film Scam
The National Do Not Call List Registry Isn’t the End-All-Be-All
Protecting Yourself With Apps
Report Telemarketers/File Complaints
This Telemarketing Call Sheet has a synopsis of what you should do when you receive a call as well as fields in which to hand-write the specifics about a telemarketing call when it comes in. Print a few of these out and place them by the telephone. These are perfect for evidence when you take the telemarketing company to court!
See additional telemarketing tools and resources.