Earning treble statutory TCPA damages for willful or knowing telemarketing violations

We all know that 47 U.S. Code § 227(c) provides statutory damages of up to $500 per violation, and 47 U.S. Code § 227(b) provides statutory damages of $500 per violation.

These damages may be trebled if "the court finds that the defendant willfully or knowingly violated this subsection".

Given that some judges don't like awarding money for "just phone calls", and that the trebling is a substantial multiplier, it is worth thinking about how to demonstrate the defendant's telemarketing violations were willfully or knowing. As at example, see Aussieker v. TSHB, LLC, 2:22-cv-01886-DAD-CKD (PS), 10 (E.D. Cal. Jan. 31, 2024).

Mark received a spoofed call with no one there when he answered, and then the next day received a phone call and a text from the defendant. Mark "responded to Nico by asking to be placed on the internal do-not-call list" and Nico must have seen it because he responded. But he didn't comply because the defendant called twice more.

Mark sued and the defendant didn't respond to the suit, so Mark moved for a default, including treble damages.

"Plaintiff requests trebled damages. (ECF No. 11 at 37.) To determine whether to impose enhanced statutory damages, courts look to the nature of defendants' conduct, defendants' prior TCPA violations and whether non-trebled damages would sufficiently deter future TCPA violations. Doyle v. JTT Funding, Inc., 2019 WL 13037025, at 12 (C.D. Cal. Dec. 2, 2019). See Heidorn, 2013 WL 6571629 at 17 (denying treble damages where plaintiff did not provide evidence that the defendant was previously sued under the TCPA or that the statutory minimum would be trivial to the defendant); compare Osgood v. Main Street Mktg., LLC, 2018 WL 11408586, at *2-3 (S.D. Cal. Aug. 20, 2018) (granting treble damages where defendants continued to make phone calls after plaintiffs filed suit). Here, plaintiff has not put forth evidence that defendant has previously violated the TCPA or that non-trebled damages are insufficient to deter future TCPA violations. Accordingly, the undersigned recommends that plaintiff's request for treble damages be denied."

This Court set the bar really high for treble damages - asking Mark to show that

• The defendant had been sued for TCPA violations before

• The statutory minimum would be trivial to the defendant

• The defendant continued calling after the plaintiff filed suit

Mark did what should have been sufficient to obtain treble damages - he made a DNC request the defendant ignored - and Mark can't force the court to treble the damages. But perhaps he could have come to court showing $3k would be trivial to a real estate investor. Perhaps he could have followed up with a discussion showing the defendant didn't have an internal DNC list.

The point being treble damages are not automatic. Some courts use treble statutory damages to dissuade willful and knowing telemarketing violations and some courts won't award them unless the court would look biased without awarding them.

Here are some interesting cases on treble damages:

“A court may award treble damages if it finds that a defendant "willfully or knowingly" violated the TCPA . . . the Supreme Court has held that a willful violation includes "not only knowing violations of a standard, but reckless ones as well." . . . Conduct is reckless if it "is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.”[1] Awarding treble damages is a “low threshold”[2] if a court has “evidence that a defendant was aware or should have been aware that it called an individual after he or she asked that the calls stop”[3]

[1] True Health Chiropractic, Inc. v. McKesson Corp., No. 22-15710, 8 (9th Cir. Oct. 25, 2023)

[2] Roylance v. Alg Real Estate Services Inc., 14-cv-02445-BLF, (N.D. Cal. Apr. 3, 2015)

[3] Warman v. Law Office of Daniel M. Slane, 14-CV-700(LJV), 13 (W.D.N.Y. Mar. 13, 2017)

and see Rogers v. Assurance IQ, LLC, 2:21-cv-00823-TL, 13 (W.D. Wash. Mar. 27, 2023)

"Defendants argue that Plaintiffs' barebones conclusions that their violations of the TCPA were willful and knowing are insufficient to support a prayer for increased damages above the statutory $500 per infringing call. Plaintiffs have alleged that Assurance IQ explicitly instructed Boomsourcing to use pre-recorded messages and approved the script for that pre-recorded message and that it “maintained interim control” over Torchlight Technology's actions and provided the vendor with parameters regarding whom to call. They also allege “Defendants' violations [of § 227(c)] were knowing or willful.” Courts within this circuit have repeatedly found similarly conclusory allegations regarding the willful or knowing nature of TCPA violations to be sufficient to withstand a motion to dismiss. See Keifer v. HOSOPO Corp., No. C18-1353, 2018 WL 5295011, at 5 (S.D. Cal. Oct. 25, 2018) (finding enough support in an allegation that “the foregoing acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA” to deny dismissal and collecting cases). While the complaint's allegations could be strengthened by inclusion of further facts, such as any requests Plaintiffs made to Defendants to stop the unwanted calls, see Quicken Loans, 2020 WL 5292002, at 5, further factual development is unnecessary at this stage in the litigation. The Court therefore DENIES the motion to dismiss with respect to Plaintiffs' request for treble damages."

What this really means is the bar for finding treble damages is judge by judge specific. Hopefully you now know more about earning treble statutory TCPA damages.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.