Get your TCPA trebled damages
- Peter Schneider
- Jul 7
- 7 min read
Updated: Jul 22
The holy grail of TCPA lawsuits is getting the trebled damages. The TCPA plaintiff in Tatum vs. New York Tribeca Group, 2025 WL 1864961 (E.D. Tex. July 7, 2025) came very close but didn't quite get there. Let's look at his case and see what we can do to be better next go around.
Mr. Tatum showed up with a complaint, served New York Tribeca Group LLC, they didn't answer or respond, and Mr. Tatum moved for a default, and then a default judgment.
Mr. Tatum got the default judgment, but not the trebled TCPA damages.
Mr. Tatum's argument for awarding trebled damages was apparently he had sued them before for unwanted calls and surprise surprise, they kept calling. And then apparently Mr. Tatum emailed New York Tribeca Group about the unwanted calls, so he felt that calls beyond his email were willful or knowing.
As the Report notes, however, Plaintiff presented insufficient evidence to justify trebling damages. For example, Plaintiff did not provide the settlement agreement to identify the individuals placed on notice [he probably could not if the terms of his settlement agreement was confidential, but he probably could have put enough well plead facts in his complaint to make up for this in a default judgment situation. I didn't pull his complaint or motion so I don't know if he tried], nor did he provide the alleged email to identify who received notice [this was a mistake]. In addition, Plaintiff failed to allege facts that “would create the nexus to show that the violations were indeed made willfully.” Nor does Plaintiff cite any supporting cases to merit trebling damages under the circumstances alleged. Notably, Plaintiff also failed to distinguish the case cited by the Magistrate Judge declining to treble damages under factually similar circumstances. See Horton v. 360 Digital Mktg., LLC, 2024 WL 3032447, at (N.D. Tex. May 13, 2024), report and recommendation adopted, 2024 WL 3033626 (N.D. Tex. June 17, 2024) (finding that calls made after texts following a settlement agreement amounted to no more than negligence).
I found the Horton case here. I'll give a brief recap. Mr. Horton had also previously sued 360 Digital Marketing LLC for unwanted calls, resulting in a settlement. Once again they called Mr. Horton, and Mr. Horton sued them but this time had to pursue a default judgment. I think by definition, continuing to call after getting sued for calling is willful or knowing, but patron saints of telemarketers lurk in high places.
But Horton alleges no facts to show that his continuing to receive texts from 360 after this settlement amounts to more than 360's negligence [other than he sued them before for unwanted calls and they kept calling]. See Noviello v. Adam Wines Consulting, LLC, No. 3:22-cv-52-BN, 2023 WL 2776696, at (N.D. Tex. Apr. 4, 2023) (observing that some "courts have interpreted willful or knowing under Section 227(c)(5)(C) as not requiring bad faith, but only that the person have reason to know, or should have known, that his conduct would violate the statute," [like getting sued previously for calling the same phone number] while others "have endorsed the position that, under Section 227(c)(5)(C), mere negligence would not be enough to support trebling an award and, instead, a defendant would only be liable for treble damages if its actions demonstrated indifference to ongoing violations and a conscious disregard for compliance with the law" (cleaned up; quoting Cunningham v. Patterson, No. A-19-CV-409-LY, 2020 WL 7554569, at *2 (W.D. Tex. Apr. 3, 2020), rec. adopted, 2020 WL 7585887 (W.D. Tex. June 9, 2020); Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 662 (4th Cir. 2019))). In Noviello, the court concluded that no evidence at trial supported a finding that the defendant "willfully or knowingly violated the regulations prescribed under 47 U.S.C. § 227(c)." There is similarly a lack of evidence on the record here, to make such a finding at default judgment. Harris v. World Fin. Network Nat'l Bank, 867 F. Supp. 2d 888, 895 (E.D. Mich. 2012) ("[A] broad application of `willful' or `knowing' would significantly diminish the statute's distinction between violations that do not require an intent, and those willful and knowing violations that congress intended to punish more severely.")
But it is what it is, we live in a world with the patron saints of telemarketers in high places and it proves the point of why, at some point, making a do-not-call request is sensible on multiple fronts.
And then make sure your do-not-call request or settlement is in front of the judge at default judgment time. But don't feel to bad for Mr. Tatum, the magistrate judge wanted to short him the damages under TBCC 302.101 for “mak[ing] 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.” The statutory damages for this can be $5,000 each.
Mr. Tatum had to fight off a baby patron saint to get his $5,000 per call statutory damages under BCC 302.101:
the Report recommended not awarding Plaintiff damages under § 302.302(a), id. at 15–16. The Report reasoned that Plaintiff is already receiving damages under the TCPA based on the same thirty-four unwanted calls from Defendant during the relevant period. And awarding additional damages for the same violations under the TBCC would be an impermissible “double recovery.” Id. at 15–16. But the reason for avoiding a “double recovery” does not apply here. Courts generally avoid awarding a double recovery because it does more than compensate the plaintiff for her injuries—it provides the plaintiff with an unjustified windfall. Landry v. Carlson Mooring Serv., 643 F.2d 1080, 1088 (5th Cir. 1981) (explaining that double recovery is to be avoided “for compensable injuries,” and any recovery that does “not serve as compensation for [a plaintiff’s] injury” will not be considered an issue for double recovery purposes). Here, however, Plaintiff need not show an injury to recover damages under the TCPA or the TBCC because both statutes impose penalties without regard to injury. See 47 U.S.C. § 227(c)(5) (“A person who has received more than one telephone call . . . may . . . bring . . . an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater.”); TEX. BUS. & COM. CODE § 302.302 (“A person who violates this chapter is subject to a civil penalty of not more than $5,000 for each violation.”). Nothing in either statute, moreover, precludes a plaintiff from bringing an action under both statutes and receiving the penalties that each statute provides. See 42 U.S.C. § 227(f)(1) (recognizing that states may impose “more restrictive” requirements prohibiting certain telephone solicitations). In fact, the two statutes prohibit different conduct, further supporting awards of damages under both. Contrast 42 U.S.C. § 227 (prohibiting calling individuals on the National Do Not Call Registry) with TEX. BUS. & COM. CODE § 302.101(a) (prohibiting calling a purchaser in Texas unless the caller “holds a registration certificate”); see Samaad v. City of Dall., 940 F.2d 925, 932 (5th Cir. 1991), abrogated on other grounds by Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 728 (2010) (“We do not see any reason why an aggrieved plaintiff could not simultaneously recover for these separate violations, even though they arise out of the same general set of facts.”) (emphasis added). Accordingly, courts routinely award statutory damages under both the TCPA and TBCC based on the same unwanted telephone calls or texts . . . Accordingly, the Court awards $170,000 in damages for Defendant’s violations of § 302.101.
Even in default, Horton didn't win on his ATDS claim
ATDS claims are hard, even in default judgment territory.
Horton does allege the use of an ATDS. (It "is the Defendant's practice of texting consumers who are the National Do Not Call List using an ATDS.") ("Rather than adhere to the requisite rules regarding obtaining consent prior to engaging in telemarketing and abstaining from the use of an ATDS, Defendant repeatedly place texts to consumers who have never provided consent (either orally or in writing) to receive such texts."); ("Using an ATDS, the Defendant, or its proxy, texted the Plaintiff with the Defendant's consent, knowledge, and for its benefit without having any consent to do so from the Plaintiff."). But all of Horton's allegations as to the use of an ATDS are conclusory. [This is the rope that hangs many a pro-se plaintiff and attorney alike] That is, he has not "plausibly [pled] the use of an ATDS by alleging facts that indirectly suggest that such a device was used." Horton v. Tex. Fed'n for Children PAC, Inc., No. 3:22-cv-2736-D, 2023 WL 3136422, (N.D. Tex. Apr. 27, 2023) (in which the court found that Horton had plausibly pled the texts were sent through use of an ATDS where Horton alleged "that the text messages `were made using an automatic telephone dialing system as defined at 47 U.S.C. § 227(a)(1) and as explained in subsequent FCC regulations and orders'"; "assert[ed] that the system TFC used has the `capacity to store numbers, or to randomly produce telephone numbers to send text messages using a random or sequential number generator'"; and "maintain[ed] that these allegations are supported by the following facts: that all three messages were generic and not addressed to Horton specifically; the frequency of the messages; the absence of any preexisting relationship between the parties, and the fact that Horton is not a registered Republican; the coincident conclusion that there is no way — aside from the use of an ATDS — that TFC would have had access to Horton's telephone number; and that the sender's phone numbers (although long codes rather than the short codes typically used by an ATDS) did not receive incoming calls and were not monitored for incoming text messages"). That level of detail concerning this required element is missing here. [So Horton plead the right facts in a prior lawsuit but got a little lazy and it cost him here. When you write your complaint, read it again at the end and think how you would get full damages with a default judgment against every party. Plead more facts as needed.]
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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