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How To Sue the Auto Dialers 402

Posted by CmdrTaco
from the phone-wreckers dept.
Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows...

Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".
and part (b)(3)(A) states:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

  • (a) No person may: [...]

    • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.
  • (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

    • (4) Which is a tax-exempt nonprofit organization.
  • (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

    • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
    • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

  • First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
  • Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

  • Does the organization making the call identify themselves at the beginning of the message?
  • Did they give their return phone number anywhere in the message?
If the answer to either of those questions is no, it's suing time!

Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

  • Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
  • If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.
What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

  • Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

    • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
    • do they require a money order or can they take a plain old check?
  • Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

    If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

    Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

  • Your proof of service (see previous steps)
  • A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
  • A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
  • A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
  • A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!

This discussion has been archived. No new comments can be posted.

How To Sue the Auto Dialers

Comments Filter:
  • by dada21 (163177) * <adam.dada@gmail.com> on Wednesday November 01, 2006 @11:14AM (#16673913) Homepage Journal
    I'm all cell phone now, so I can understand why _NOW_ I don't get any of these calls. But for years we had a landline -- the same number for years, too. We never got any solicitations, unwanted spam phone calls, attempts to switch long distance service, or recorded announcements. Ever!

    That phone number was listed on the web, in the phone book, in my e-mail sig, pretty much all over the place. I used it on applications for frequent shopper cards, etc.

    I've always been confused why some people get harassed, and others don't. I don't use credit cards or banks or stock investment companies -- is it the financial industry that sells that information the most often? Anyone work for a company that mines phone numbers?
    • Re: (Score:2, Insightful)

      by diersing (679767)
      Its hard to admit to ourselves sometimes so it can help is a stranger does it...

      You're not important. Its not, never has been and never will be, about you.

    • Re: (Score:3, Funny)

      by Gospodin (547743)

      Try using deodorant.

    • by eln (21727) * on Wednesday November 01, 2006 @11:33AM (#16674199) Homepage
      I understand how you feel. If you'd like, I can call you and attempt to sell you a wide variety of services, including obvious scams, for a small fee. For just a little extra, I can call you during the dinner hour.

      Hurry, this offer won't last.
    • Re: (Score:3, Funny)

      by kfg (145172)
      Anyone work for a company that mines phone numbers?

      Believe it or not, there is a company out there that will supply all numbers, names and addresses for every listed phone in a given dialing area; to anyone.

      KFG
    • by sckeener (137243)
      I've always been confused why some people get harassed, and others don't.

      I guess you don't live in a battle state.

      Seriously I haven't had any political phone calls, but I live in Texas....
    • by FatAlb3rt (533682)
      I get some autodialers on my cell phone - number comes across too. It's some pre-recorded guy that pauses and says in a hesitant voice "Hi, I'm [insert some jackass name]..." and then I tune him out - I think he's pitching credit card debt consolidation. I get this every few weeks, but I've gotten it a couple times in the last week.

      I need to sue this guy. Or punch him in the face.
    • by soft_guy (534437)
      How do you get around using banks? Do you work? Does your employer pay you in cash? Do they pay you in gold dust? For most people, we have a checking account because we need to deposit our paychecks. Most banks won't cash your check if you don't have an account. Check cashing places are rip offs because they charge a percentage of the check just to cash it.
      • dada21 is well known for being self-employed and an avid gold collector (hard currency over fiat greenbacks and all that). Since he avoids banks and credit as much as possible, and as I said self-employed, he probably isn't on the "popular" lists sold to the phone harassers.
      • that ones easy:

        cash the check at the issuing bank. thats the whole point of the check, that you can present it to the bank and receive X dollars for it. when you deposit/cash it at your bank (assuming you have an account) all you are doing is having someone else do that part for you.
  • Yes but... (Score:4, Funny)

    by Anonymous Coward on Wednesday November 01, 2006 @11:18AM (#16673965)
    Happy Dude promised me that if I sent $1 to some address on Evergreen Terrace I would have eternal happiness. Why would I want to sue eternal happiness?
  • I've been getting about two of these suckers a day on my answering machine. I never actually listen, but just delete. Now that I know it's a potential profit center, they might be worth listening all the way through to see if they qualify for further action. Thanks for the info on how to finally discourage these bastards.
    • by ocbwilg (259828)
      I've been getting about two of these suckers a day on my answering machine. I never actually listen, but just delete. Now that I know it's a potential profit center, they might be worth listening all the way through to see if they qualify for further action. Thanks for the info on how to finally discourage these bastards.

      You can do the same thing with junk faxes. I believe that it is the same legislation that forbids those as well. I'm also pretty sure that willful violation can get you triple damages
  • Wow... (Score:5, Funny)

    by JoeLinux (20366) <joelinux&gmail,com> on Wednesday November 01, 2006 @11:23AM (#16674057) Homepage
    Money, and from the telemarket community. We could set up a fund dedicated to calling the owners of these telemarketing companies during dinnertime.

    "Mr Johnson?"

    "This is he."

    "Yes, we'd like to offer you $100 for buying our aluminum siding within the next 48 hours..."

    "I'm sorry, but I'm not interested"

    "Would you like to refinance your house? rates have never been lower..."

    "Uhhh...no thanks.."

    "Could you take the time for a quick 3 minute survey?"

    "Well, I don't think I should..."

    "Ok, first question: Are telemarketing companies the scum of the EARTH, or simply localized scum within their communities?"

    "Now, I don't think..."

    "Congratulations sir, you've won an absolutely free vacation in Hawaii!"

    "But I already have a...."

    "All you need to do is sell 50 of these hats that have 'I'm with stupid' stitched into the cap. Unfortunately, the printer messed up, so they just say, 'I'm stupid'. We'll send these out to you right away"

    "Would you just leave me alo..."

    "Sir, the Democrats and Republicans could take this election if we aren't careful. Evidently, they've got the asshat telemarketing vote all cinched up. We would strongly encourage you to get on a rainbow wig, go out on state street and encourage people to vote Independent. Our motto this year is 'No, really, it's not a wasted vote'"

    "AAAAUUUUUGGGGHHHH!!!"

    "Sucks to be you sir" *click*
  • Two big words of warning: 1) This law is probably unconstitutional where political speech is concerned. Political speech is more protected than mere commercial speech, so while it may be able to stop sales call harrassment, it won't stop solicitations for political organizations. Also, it won't stop calls from companies with whom you have a pre-existing business relationship (i.e. your phone company), unless you specifically tell them (preferably in writing) that you do not want to be solicited in the fut
    • by gfxguy (98788)
      Even free speech doesn't provide the rights to a venue - unsolicited calls, especially auto-dialed recorded calls, are subject to restrictions. It doesn't restrict political speech, it doesn't even say a politician CAN'T use an auto-dialer to send prerecorded messages - the law just says there are certain ways this must be done.
    • No, free speech doesn't remove telecommunications restrictions. You can't say fuck or show nipples on broadcast TV just because it's part of a political ad. Nor can you send faxes to fax machines. Spam is somehow fair game though... they don't have to include an opt out for future messages.
      Hmm, "Vote the strict FSM ticket this year... for a preview of life under the FSM party, here's a tour of the afterlife's stripper factory..."
    • Political speech is more protected than mere commercial speech, so while it may be able to stop sales call harrassment, it won't stop solicitations for political organizations.

      Freedom of speech, political or otherwise, does not include the right to force people to listen to you.
      • by PaxTech (103481)
        Maybe it's just me, but has anyone else thought of just hanging up the phone? No one's forcing you to listen, and I hardly think that occasional unsolicited phone calls touting candidates for office during the couple of weeks prior to national elections is a serious problem threatening our society.

        Frankly just READING the above post would suck away more of my time than fifty political phone calls, leaving aside the underlying idea of intentionally wasting hours of my valuable time trying to sue the caller
        • Oh, I can hangup the phone perfectly fine, but really, why does freedom of speech make that people think they have the right to disturb me with their nonsense whenever they want? Even when I hangup on them, they have still taken my time and interrupted whatever I was doing.
      • by LMariachi (86077)
        No one's forcing you not to hang up the phone.
  • Anyone who's had dealing with the court system here in the U.S. would know that you want no part of it.

    You: Hi, I'm here to file my small claims court grievance towards this political party.

    Claims Court Window: Hmm, you need to take this form across the street, 3rd floor, room 314.

    You: Oh. But you're the Small Claims Court window...what's in 314?

    CCW: That's the filing window. Once your claim is filed, then any future dealings with the court will begin here.

    You: Ah. Makes sense. Thanks. ...

    You (at window
    • by planetmn (724378)
      Actually, at least the one time I sued somebody in small claims court it was rather straightforward and the court employees were very helpful.

      I was 18, when down to the court, paid the fee (maybe $35) and the clerk told me what forms to fill out. She also told me the options for serving the papers. In addition, she pointed me to the computers where I could search for other cases to help research my claim.

      I served the papers, and a court date was set. I was told to arrive at a specific time (I belie
  • by Beryllium Sphere(tm) (193358) on Wednesday November 01, 2006 @11:26AM (#16674113) Homepage Journal
    It may have advice such as

    "Be brief". Judges have more caseload than they want. What happens when you ask for the time of a busy person and drone on and on and on and on and on and on?

    "Be gone". If the other party doesn't show up, you have a default judgment. If you stick around to observe the spectacle of justice and the other party shows up late, the judge might feel entitled to restart proceedings.
  • IANAL, but I still think that I'm qualified to point out that filing a lawsuit based on an essay posted to Slashdot is a really stupid thing to do.

    • IANAL, but I still think that I'm qualified to point out that filing a lawsuit based on an essay posted to Slashdot is a really stupid thing to do.

      Where does this attitude come from? Slashdot has a definite DIY community to it. Maybe your first lawsuit isn't going to suceed or make much money. But then again your first attempt at making pottery, or programming probbably won't be very good either. Of course you aren't qualified to file a lawsuit based on one essay. But that doesn't mean there's not some
  • Three comments (Score:5, Insightful)

    by linuxwrangler (582055) on Wednesday November 01, 2006 @11:34AM (#16674223)
    1. Do more research. There is much more to the law than the OP mentions including....wait for it....exemptions for political calls. Imagine that. And for pre-existing relationships, research surveys (provided they are real surveys, not disguised sales calls), etc. There is also a mishmash of state laws to consider - many of which have not been well tested in the courts.

    2. If you have the time and inclination and are willing to do the additional research, go for it. You are doing the rest of us a favor.

    3. If you would rather have some fun instead (only for live person calls), use the anti-telemarketer script found here: http://www.xs4all.nl/~egbg/counterscript.html [xs4all.nl]
  • I keep track of these calls. If they're about issues I have a position on, I ignore them. But if they're on issues I'm undecided on, I generally vote against the people who are annoying me with recorded announcements.

    Last election I had a tough time because on a few proposals, both sides were bugging me about equally. So I voted against the side whose recording pissed me off the most.

    I used to do this for elected positions as well, but this year my strategy is simpler; I wouldn't vote for a republican to
  • I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entra

    • by taustin (171655)
      Particularly since, in some states, recording a conversation (on the phone or otherwise) without permission from all parties is a felony.
    • Re: (Score:2, Informative)

      by panthrkub (886691)
      The spammer was notified. RTFA
  • by Carik (205890)
    Just what we need. More idiots suing people for... not much.

    If you don't want to listen to these, hang up on them. If you don't feel like picking up, don't. The world won't end because you didn't answer the phone. Yes, I get these sometimes, and used to get them constantly. I just started hanging up on the machines, and telling the people "Please put me on your do not call list. If you wish to contact me in the future, please send me something by mail." None of them ever send me anything in the mail,
    • How about being able to use one's phone line for the purpose they have it for? Eg, if it rings, its someone they've given the number to, and/or are expecting a call from?

      What if a loved one is in an accident, and the hospitcal tries to call them only their number is busy with the telemarketing call? Or if it goes to an answering machine, but it cant take any more messages becuase its full of telemarketing drivel?

      And how do you tell a recording to stop calling you?

      Wether its worth a lawsuit is entirely up to
  • We've been on the Do Not Call list for about 3 years (or however long its been in service). We receive 5-8 calls a week from telemarketers on our home telephone as well as our mobile numbers (all numbers areon the Do Not Call list).

    I've called every single candidate and their respective parties and asked that I be removed from their automated call list.

    The NRCC is the worst offender here, and the only one who has consistently ignored my requests that they stop calling us..

    1. I can't hang up on them. They
  • Lately, I've been coming home to find my answering machine's memory completely filled with pre-recorded campaign messages. Yes, it's annoying.

    That notwithstanding, a $500 small claims award (assuming that's how much I'd have for my trouble) is a little more than what I earn in a day, and I'd rather spend my day at work than go through all that described in the article.

    So no, I don't have what it takes. I don't have the time.
  • by stinerman (812158) <nathan.stineNO@SPAMgmail.com> on Wednesday November 01, 2006 @11:59AM (#16674649) Homepage
    I can attest to the outright activism in at least my local (Dayton, OH) area judges.

    It is Ohio law that any security deposit should be returned to a tenant 30 days after the tenant moves out, assuming the tenant left a forwarding address for the deposit. If the landlord fails to do this, the tenant can get double the money they were supposed to recieve. Two lawyers both said that while my landlord was in violation of the statute (it took her 37 days to return my deposit), I'd be hard pressed to find any judge that would find in my favor. The law is in plain black and white, but apparently no judge in the area will "enforce" it.

    Activist judges, indeed.
    • The landowners are more likely to vote for those judges, and if you are moving out of the area, you are not going to be voting for them.
    • I think the key point in why a judge isnt likely to giev you double your deposit is that you *did* get the deposit back, but it was just a bit late.

      If the landlord didnt give you your deposit back at all, then I suspect your chances would be better.
    • I know this is getting way off-topic here, but judges (especially in small-claims court) are usually unwilling to give a plaintiff a bonanza (that is, damages in excess of actual damage suffered). Small-claims court is about making the plaintiff "whole", allowing them to recoup money to cover the damages they have suffered. When there is no indication of any actual damages, a small-claims judge is unlikely to award statutory damages unless the defendant's behavior was malicious or grossly negligent.

      In the
  • I have a serious question. What if the beginning of the call is cut off on my voice mail? 99.999% of the time, they will start leaving the message while my outgoing greeting is still playing. Any idea on if this would invalidate my claim against them (or make it better)?
  • Bennett is in Washington, and does not point out that those are Washington rules. Each state has their own rules, but most are similar.

    Some differences in California are:
    1. You can use regular certified mail in small claims, only if the court does it. They charge $8.00 to do it.
    2. You can serve a rented mailbox, or what it is technically called is a commercial mail receiving agency (CMRA).
    Under California Business and Professions Code 17538.5, when
  • Carefull! (Score:5, Informative)

    by humphrm (18130) on Wednesday November 01, 2006 @12:08PM (#16674793) Homepage
    This is a very very broad HOWTO, and does not take into account the special requirements in some courts that can get you into very real trouble.

    IANAL, but I have sued in small claims court, and lived to tell about it. I found out the day I arrived in court that I was totally unprepared because I did not understand the process, and I was lucky that the defendant didn't understand how unprepared I was, so I managed to get a 50% settlement.

    Some courts (for instance, Cook County court in Illinois) give defendants the absolute right to a jury trial and an attorney. So this means, even though you file pro-se, the defendant is well within his or her rights to hire a lawyer. A smart lawyer. For those keeping track, you are representing yourself, thus you are a dumb lawyer. Just guess how that turns out.

    The jury trial part is especially tricky, and what almost killed my case. In a normal small claims bench trial, a judge listens to your argument and makes a decision. In in jury trial, you must present evidence is certain acceptable ways, and if you do not, your testimony will be surpressed. If you try to "get some testimony past" the rules of evidence, you might go to jail for contempt. And if you arrive in court without Jury Instructions (a legal document that you must write prior to your court date) it is entirely likely that your case will be dismissed before you even raise your right hand, and a judgement entered against you for wasting the court's (and defendants) time.

    Don't know how to write jury instructions? Neither do 90% of the attorneys out there. Only litigators know this valuable information. Good luck getting free advice from them. Hint: They don't post these instructions on websites.
  • At least telemarketers have to listen to the Do Not call list...

    The other day I recieved several calls (some at night!) from (area code) 000-0000. Of course, not a valid number. I pick up the 12th time it rings. It's a prerecorded message from an assembly candidate that I have recieved 5 other prerecorded messages from.

    I don't find out who it is until 15 seconds in and no callback number. At least the telemarketers would have to take you off their list! I can't figure out a way to stop the calls...
  • by Animats (122034) on Wednesday November 01, 2006 @12:13PM (#16674863) Homepage

    The neat thing about doing small claims cases like this is that it's only time consuming the first time. Once you've found all the resources you need and have all the materials ready, the second case is basically macro instantiation.

    Process servers are useful. The first time I used one, it was a company named "Attila the Hun School of Charm". Really. I went down to their place in person, and as I was filling out the paperwork, one of the process servers comes in. He looks like a football linebacker and is driving a Jeep with big tires. A few days later, I get the return from the process server, describing the delivery of the summons: "Person appearing to be in charge threw papers out front door". When I got to court with that, it was an instant win - default judgement in my favor.

    Collection approaches vary by state. I'm in California. I had a court judgement against a retail store, and after some non-fruitful phone calls and letters, I paid for a "till tap" and an "8 hour keeper", services of the County Sheriff. This works against any business with a cash register. A uniformed, armed sheriff or two show up at the business, present a copy of the court judgement to the store manager, and take the money out of the cash register. That's the "till tap". Refusing to pay is not an option. If there's not enough money in the cash register, they stick around for up to eight hours, standing next to the cashier and taking the money as it comes in. Persons who pay by check are told to make their check out to "County of ...". They handle credit cards, too. That's the "8 hour keeper". It seldom gets that far; businesses will frantically come up with some cash to get rid of the sheriff.

    Eventually, you get a check from the sheriff's office. The fee for the "8 hour keeper" is added to the judgement. So you get that payment back.

  • by DragonWriter (970822) on Wednesday November 01, 2006 @12:23PM (#16675025)
    If you are going to try to sue someone, I wouldn't rely on legal advice from someone who is apparently a non-lawyer and puts out a guide to suing on a federal law claim in small claims court that tries to make it seem open-and-shut simple. First, if you are going to sue in small claims court, and don't want to pay an attorney, you need to research the law governing the and procedures applicable to small claims court in your state: either going directly to the law, or (more friendly), one of the guides from reputable self-help legal publishers.

    Second, I'd look into a better reference on the applicable law (again, you can go directly to the law, but if you are going to take someone else's word on interpretation without hiring a lawyer, again, go to a reputable source.) Its worth noting that if you check the official site, the regulations cited (47 CFR 64.1200 [gpoaccess.gov]) do not match the material quoted.

    Its also important to note that the requirement for a the required identification and phone number is "during or after the message": if you want to do this, you've got to first listen to the whole message, and if they complied with the rules, there is nothing you can do to get back the time you wasted listening to the message.

    Also, quite a few election-year messages are delivered by entities that exist and are created for the election, which may not have any remaining resources after the election, and may even be disbanded shortly afterward. While if you have a major claim against such an entity it might be worthwhile to do the work needed to try to attack the sponsors behind it, trying to do that to enforce a liability that (even with the triple award for "willful and knowing" violations) is only at most $1,500 (if you can't prove actual damages of over $500) is, well, likely to be a headache.

    Its probably easier to report violations to your state authorities: state attorneys-general also have the right to bring actions, and if more people report violations, there is more they can do. And state attorneys-general have a lot more resources to conduct investigations, can claim the statutory damages for all violations by the targets of their suits, not just the one that was made to you—and because they can aggregate the claims, it makes the cost of litigation a lot more bearable for them. Get your tax moneys worth out of your state government, let them do the heavy lifting.

    That being said, this message should serve as a good reminder that you do have the power for do-it-yourself enforcement here, though I wouldn't rely on this as a guide to how.

  • on this 19" CRT running FireFox at 1600x1200, this article showed up in the bookmark bar and I thought the title was "How To Sue The Auto DEALERS."

    I hate auto dealers much more than I hate auto dialers.

  • by hurfy (735314) on Wednesday November 01, 2006 @12:35PM (#16675227)
    This only works for the ones that are fairly close to following the law. Not sure how i feel about going after the borderline cases.

    The most obnoxious ones are untouchable. If they don't give you the name of the organization like they are supposed to you have no way to find it or even the phone number :(

    I tried to track down one that was using an autodialer and message to pitch a obvious credit card scam. I pressed 9 to get a person, between message and person i still had no idea who it was. No one cares that these guys are breaking the law (several of them in WA which is pretty strict). Telephone co won't help and cops don't care unless there is 10k or a body on the line :/ Trying to get help from phone comapny was more frustrating than the scammer calling so..........

    Nice in theory but there is no way to stop the ones that really need to be stopped.
  • This guy makes it sound like the process of serving papers is straightforward. It is not necessarily so. For example California has like 52 different counties and each one does things differently. In some counties, you are require to serve papers in person yourself. In some counties, you are not permitted to serve papers yourself, and must have them served by someone else. In some counties, this must be the sheriff and there is a flat fee for serving papers. In some counties, this must be a registered proce

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