Dishonest telemarketing defendants - what can you do?

Yes yes I get it, dishonest and telemarketing defendant will come off as redundant to many people. But there are different levels of stupid dishonesty telemarketing defendants are willing to sink to, and in TCPA litigation you need to know your case so well that you can pounce on every stupid lie your TCPA defendant tells.

I'll give a few examples. In the Nathen Barton v Joseph Delfgauw TCPA litigations (yes, litigations now), Mr. Barton has trapped Mr. Delfgauw in his own answers answers and it didn't take any clever lawyering on Mr. Barton's part (which is good because he isn't a lawyer). Mr. Barton just asked Mr. Delfgauw a few simple questions and Mr. Delfgauw put himself in a box.

The first no-rocket science question was, list every calendar date the phone number was added to Mr. Delfgauw's calling list. Mr. Delfgauw answers with a variety of dates, two of which will be important later - 12/9/2021, and 6/12/2022.

The second no-rocket science question was:

List every calendar date that phone number (360) 910-1019 was removed from all calling lists or phone number databases such that no entity under your control could initiate calls or text messages to it. This request is limited in time to 3/31/2021 to 12/31/2023.

If we put the two answers together, what do we learn? The phone number was removed on 9/13/2021, and put back in on 12/8/2021. The number was removed on 7/27/2022, and not put back in [at least through 12/31/2023, the limit of the question].

So what should we not see between 9/13/2021, and put back in on 12/8/2021? And what should we not see after 7/27/2022 through 12/31/2023? There should be no phone calls from Mr. Delfgauw companies during these periods of time.

So when Mr. Delfgauw testifies to phone calls on 11/17/2021, and 8/31/2022, he's trapped himself.

Now this one was pretty obvious. The next one, still not rocket science, was only a smidge less obvious. Let's start with the setup - Mr. Barton asked Mr. Delfgauw to disclose the contents of the text messages, what did they say? And if they had links, what webpages did the links open?

Mr. Delfgauw testified that he didn't know what text messages were sent , or the content of the text messages because they were "not stored". And his lack of information wasn't because the records were deleted, he testified no records were deleted.

What is all this building to? Mr. Delfgauw testified that he could not provide the dates his companies texted Mr. Barton because he and the companies didn't have the records. And not in the "we don't have them because we deleted them" sense.

So what's the problem? It conflicts with prior testimony from Mr. Delfgauw.

Testimony he gave not just once, but multiple times.

Here is the deception Mr. Delfgauw trapped himself in - If the defendants' don't keep records of what text messages they send out, how could they know when a particular recipient clicked on a link? The only way they could know that a recipient of a text message with phone number (555) 555-5555 clicked on the link abc.com/12345 is if they stored a record that they had texted the link abc.com/12345 phone number (555) 555-5555, something they now deny ever having done.

Oops! So what is this all building to? The way to handle a dishonest TCPA defendant is get them talking, and keep them talking. Let them dig their own hole, and let them keep digging.

Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.

📞 Call: 206-800-6000 / 971-800-6000

📧 Email: peter@nwdebtresolution.com 

Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.

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