IN THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA
DIANA MEY,
Plaintiff,
vs.
CIVIL ACTION NO. 03-C-592(W)
DISCOVER FINANCIAL SERVICES,
INC., a corporation,
Defendant.
CLOSING ARGUMENT FOR SEPTEMBER 14, 2006 JAMS ARBITRATION
NOW COMES the plaintiff, Diana Mey, by counsel, James
A. Byrum, Esq., and John M. Jurco, Esq., and pursuant to the Arbitrator’s
September 14, 2006 instruction, hereby makes the following closing argument:
SUMMARY
1. Discover Financial Services
(“Discover”) conducted a telemarketing campaign in December, 2002 and 2003,
the purpose of which was to solicit new cardholders.
2. In deciding who should be
solicited for this offer, Discover obtained a list of credit-qualified individuals
and then scrubbed that list of names of people who were unqualified for other
reasons, including, but not limited to, being a current cardholder of Discover.
3. At the time of the campaign,
Discover had in its possession 11.9 million phone numbers entrusted to them
by cardmembers to be placed on a Do Not Call List (70% of the current 17
million cardholders on Discover's present Do Not Call List).
4. Discover was aware that, because
of turnover in ownership of phone numbers, its solicitation list would
show more than one person owning the same phone number.
5. Discover did not scrub from
its list the 11.9 million phone numbers on its Do Not Call List.
6. Testimony showed that 3 different
individuals at 3 different addresses were on the Discover solicitation list
as owning the phone number that in actuality was
owned by Diana Mey.
7. Diana Mey had been on the
Do Not Call List of Discover since 2001. On October 29, 2002, as shown
by Discover's own records, Diana Mey informed Discover of her new phone number
and reiterated that she did not wish to be solicited by telemarketing.
8. Although the October 29th
do-not-call request should have been recorded immediately in Discover's records,
it was not recorded until February 21, 2003.
However, Ms. Mey did receive a bill from Discover in December of 2002,
which was sent to the new address she gave on October 29, 2002.
9. Because of its ineffective
do-not-call system, and because Discover knowingly failed to scrub its solicitation
list by using the phone numbers entrusted to it by its cardmembers, Diana
Mey received four phone calls, each of which involved several violations
of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.
10. Ms. Mey contends the calls
were made on January 17, January 24, January 28 and January 30, 2003.
Discover alleges the January 17th call was not originated by it because there
is no identification made by the caller and because it has no record of that
call being made. It should be noted, however, that Discover had no
record of the January 28th call which it concedes was placed on its behalf.
11. Pursuant to the JAMS Streamlined
Rules, Discover produced all relevant documentation relating to this case.
The documents relating to training that were produced made no reference to
training telemarketers in the requirements of the TCPA.
12. Discover testified that it
trained the trainers of the telemarketers. Discover also controlled
and monitored telemarketing phone calls and procedures of the third-party
vendors who called Ms. Mey.
13. Because of the inadequate
training and inadequate monitoring, the phone calls to Ms. Mey involved multiple
violations of the TCPA. Testimony showed that the illegal phone calls
made to Ms. Mey were from multiple vendors. Therefore, the inadequate
training was systemic and not simply a result of one vendor improperly training
its telemarketers.
14. Because she received multiple
calls, Ms. Mey is entitled to a private cause of action. Discover asserts
that they are not liable for any violations in the first call. Its
position contradicts the plain reading of the statute. Once the second
call was made, Discover became liable for all violations.
15. Because Discover knowingly
did not scrub its solicitation list with its own Do-not-call List, and because,
through Discover's monitoring of telemarketers, it knew or should have known
that the telemarketers were improperly trained, and because it took
Discover almost 4 months to record Ms. Mey's do-not-call request, Ms. Mey
is entitled to triple statutory damages in the amount of $1,500.00 per violation
in each of the four telephone calls.
16. Violations in the telephone
calls are as follows:
I. January 17, 2003 telephone call and
violations therein
- the solicitor did not honor Ms. Mey’s
October 29, 2002 do-not-call request
- the solicitor failed to provide
a contact telephone number or mailing address where he could be contacted
- the solicitor failed to record Ms.
Mey’s do-not-call request
- the solicitor failed to maintain a
record of Ms. Mey’s do-not-call request
- Discover failed to train the solicitor
initiating the call in the existence and use of the do-not-call list
It bears noting that given Discover’s subsequent calls to Ms. Mey’s
residential telephone number on January 24, 28, and 30 in attempt to reach
Ms. Mayer, it is more probable than not that the January 17th call was from
Discover’s agents.
II. January 24, 2003 telephone call
and violations therein
- the solicitor did not honor Ms. Mey’s
October 29, 2002 do-not-call request
- the solicitor failed to provide
a contact telephone number or mailing address where he could be contacted
- the solicitor failed to record Ms.
Mey’s do-not-call request
- the solicitor failed to maintain a
record of Ms. Mey’s do-not-call request
- Discover failed to train the solicitor
initiating the call in the existence and use of the do-not-call list
III. January 28, 2003
- the solicitor did not honor Ms. Mey’s
October 29, 2002 do-not-call request
- the solicitor failed to provide
a contact telephone number or mailing address where he could be contacted
- the solicitor failed to record Ms.
Mey’s do-not-call request
- the solicitor failed to maintain a
record of Ms. Mey’s do-not-call request
- Discover failed to train the solicitor
initiating the call in the existence and use of the do-not-call list
IV. January 30, 2003
- the solicitor did not honor Ms. Mey’s
October 29, 2002 do-not-call request
- the solicitor failed to provide
a contact telephone number or mailing address where he could be contacted
- although we alleged that the solicitor
failed to record Ms. Mey’s do-not-call request, it appears from the records
that he did record it.
- the solicitor failed to maintain a
record of Ms. Mey’s do-not-call request
- Discover failed to train the solicitor
initiating the call in the existence and use of the do-not-call list
- the solicitor failed to timely provide
a copy of Discover’s written do-not-call policy when requested by Ms. Mey.
Although Ms. Mey finally received a copy of the policy enclosed with a letter
dated March 3, 2003 from Stacy J. Sandler, this was sent in response to a
telephone conversation which occurred in late February, 2003.
ARGUMENT
The evidence and law in the case, as
introduced through exhibit, testimonial, and pleading format, establishes
that Ms. Mey is entitled to her requested relief under the TCPA, 47 U.S.C.
227.
(A) Ms. Mey is entitled to
recover on a per violation rather than a per call basis
The TCPA statute reads in pertinent
part as follows:
A person who has received more than
one telephone call within any 12-month period by or on behalf of the same
entity in violation of the regulations prescribed under this subsection may,
if otherwise permitted by the laws or rules of court of a State bring in
an appropriate court of that State –
(A) an action based
on a violation of the regulations prescribed under this subsection to enjoin
such violation,
(B) 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,
or
(C) both such actions.
It shall be an affirmative defense
in any action brought under this paragraph that the defendant has established
and implemented, with due care, reasonable practices and procedures to
effectively prevent telephone solicitations in violation of the regulations
prescribed under this subsection. If the court finds that the defendant
willfully or knowingly violated the regulations prescribed under this subsection,
the court may, in its discretion increase the amount of the award to an amount
equal to not more than 3 times the amount available under subparagraph (B)
of this paragraph.
47 U.S.C. § 227(c)(5)(emphasis
added).
The statute authorizes recovery of
$500 per statutory violation; it does not limit recovery on a per call basis
regardless of the number of violations in the call.
The Eastern District of Virginia federal court implicitly recognized as
much in Commonwealth of Virginia v. Real Time International, Inc., No. 4:04CV125,
2005 WL 1162937 (E.D. Va. April 16, 2005). As discussed in Ms. Mey’s
Pre-Hearing Arbitration Brief, the Commonwealth therein filed a complaint
and obtained default against Real Time for violations of the TCPA and state
statutes.
On at least 88 occasions, Real Time
initiated telemarketing calls to Virginia residents whose telephone numbers
had been registered on the National DO-NOT-CALL Registry in violation of
the TCPA, 47 C.F.R. § 64.1200(c)(2), and other TCPA regulation provisions.
The magistrate judge found that the
Commonwealth could bring an action on behalf of its residents to receive
statutory damages for each violation of $500.00, and that courts had the
discretion to award $1,500.00 if the violation was willfully or knowingly
committed.
The Commonwealth requested $1,500.00
per each of 133 violations made in 88 telephone calls, for a total of $196,500.00
in statutory damages.
Importantly, the magistrate judge determined
that the complaint sufficiently outlined the willfulness of Real Time’s conduct,
as follows:
The number of calls made to individuals on the National Do-not-call Registry;
the denial that such registration prohibited the solicitation, and attempts
to continue the solicitation; and, the failure to maintain a list of individuals
who specifically asked not to receive future calls from Real Time, and subsequent
calls to many of those individuals, are all indications that Real Time’s violations
of the statute were willful.
...
The Commonwealth of Virginia has established
by a preponderance of the evidence 133 willful violations of the TCPA by
Real Time resulting in $196,500.00 in statutory damages....
The district judge adopted the report
and recommendations of the U.S. magistrate judge. (A copy of the case
and the Civil Docket for Case No. 4:04-CV-00125 was attached to Ms. Mey’s
Pre-Hearing Brief.)
In so ruling, the district judge ruled
in accord with the statute that a telephone solicitation victim may recover
for more than one violation per telephone call.
The Arbitrator should follow the foregoing law and award Ms. Mey her statutory
damages for each violation, rather than for each call. The increase
in Discover’s economic responsibility in this case and potentially others
under similar circumstances may assist in decreasing additional violations
on the part of Discover and its agents. Simply put, an increase in the
potential liability of Discover may serve to encourage Discover to redesign
its current scrubbing procedures and to possibly implement new effective procedures.
After all, Mr. Durst admitted to Discover’s financial incentive in making
its telephone solicitations.
Consequently, by providing a greater financial dis-incentive for initiating
calls in violation of federal statute and regulations and finding liability
on a per violation, rather than per call, basis, companies like Discover may
more readily implement the regulatory requirements into their policies and
procedures. It is clear that they do not do it otherwise - and not
even after suit has been filed.
An example is the July, 2006 telephone
call that Discover initiated to Ms. Mey at her residence; although the call
was initiated to a number which was different than that called in January,
2003, it was nevertheless registered on the National DO-NOT-CALL Registry
since June, 2003.
Therefore, the TCPA statute, and federal Virginia case precedent entitle
Ms. Mey to recover for more than one regulatory violation per call.
(B) Discover failed to give
identification information
The Code of Federal Regulations, at
47 C.F.R. §64.1200(e)(2)(iv), required the telemarketers who initiated
the four calls to Ms. Mey to “...provide [Ms. Mey] with the name of the individual
caller, the name of the person or entity on whose behalf the call is being
made, and a telephone number or address at which the person or entity may
be contacted,” as a matter of course.
The telemarketers in the four different
calls not only failed to provide all the required information in each of
the four calls, but were also inconsistent in their failures.
In the January 17th call, the telemarketer failed to provide any identifying
information. In the January 24th call, the telemarketer failed
to provide the name of the telemarketer, or the telephone number or address
at which the telemarketer could be contacted. In the January
28th and 30th calls, the telemarketers failed to provide the
telephone number or address at which the telemarketer could be contacted.
Consequently, the telemarketers were inconsistent in the manner in which
they violated the regulation.
Moreover, failure to comply with federal
statute and regulations requiring that the solicitors provide Ms. Mey with
identifying information not only violates federal law, but also hinders
the ability to seek redress not only of Ms. Mey, but of anyone else in such
circumstances.
(C) Discover failed to record the do-not-call requests
at time made
The Code of Federal Regulations, at
47 C.F.R. §64.1200(e)(2)(iii), required the telemarketers to record
Ms. Mey’s telephone requests and place her name and telephone number on the
do-not-call list at the time the requests were made. In the
January 17th call, the telemarketer hung up on Ms. Mey in response to her
request to have her number added to the do-not-call list. In the January
28th call, the telemarketer responded to Ms. Mey’s request by saying that
it was easy to add her number to the do-not-call list, but then hung up on
Ms. Mey instead of doing it. In the January 24th and 30th calls, although
the telemarketers indicated that they added Ms. Mey’s residential telephone
number to the do-not-call list, Discover never produced any such listing(s)
in discovery. Consequently, it is doubtful that the telemarketers recorded
the do-not-call requests or placed her name and telephone number on
the do-not-call list at the time the requests were made.
(D) Discover failed to honor
Ms. Mey’s do-not-call requests
In addition to Discover’s agents’ violations
and inconsistencies in failing to record, the agents likewise failed to properly
honor Ms. Mey’s do-not-call requests in January, 2003, in violation of 47
C.F.R. §64.1200(e)(2)(vi). Accordingly, not only did Ms. Mey request
Discover to place her residential phone number of 304-242-1943 on its do-not-call
list in October, 2002, (Exhibit G, exhibit booklet, at 32-34), Ms. Mey made
similar requests in the January 17th, 24th, 28th, and 30th calls. It
is apparent from the transcript that Discover violated her requests by initiating
these calls. Furthermore, Mr. Durst gave testimony indicating
his recognition of Discover’s malfeasance.
(E) Discover failed to
provide a written policy for maintaining a do-not-call list
On January 30, 2003, Ms. Mey requested
Discover’s written do-not-call telemarketing policy. The solicitor
did not permit her to provide her name and address. She never received
the policy. Finally, on March 3, 2003, Stacy J. Sandler, Discover’s
counsel, mailed Ms. Mey a policy in response to a late February, 2003 telephone
conversation. This is in violation of 47 C.F.R. § 64.1200(e)(2)(i).
(F) Discover failed to properly
train the solicitors in the existence and use of the do-not-call list
Tony Durst testified on behalf of Discover
that it was corporate policy for Discover to control and monitor the telemarketing
procedures of its third-party vendors. Such control and monitoring
would ensure that the third-party vendors were in compliance with federal
law TCPA law.
Even though the subject arbitration was based in large part on Discover’s
violation of TCPA do-not-call regulations, the training manual that Discover
produced in discovery did not contain instruction or direction as to
training in the proper implementation and use of do-not-call lists not to
mention instruction or direction as to proper compliance with other federal
TCPA regulations. See Exhibit B, exhibit booklet, at 11.
Accordingly, the Arbitrator made an
inquiry at the close of the Arbitration concerning the varied responses of
the telemarketers to Ms. Mey’s questions and comments during the telephone
calls at issue (a transcript for which appears at Exhibit H, exhibit booklet,
at 35).
Discover’s actions show clear violations
of 47 C.F.R. §64.1200(e)(2)(ii) by failing to adequately train their
personnel and agents. Exhibit F, exhibit booklet, at 30, evidences
that agencies 17 and 31 initiated the calls on January 24th and January 30th
to Ms. Mey’s residential phone number (304-242-1943). Thus, two different
agencies/vendors violated federal statutory and regulatory TCPA law at the
times of these respective calls. Given that Discover is responsible for training
these agencies, this fact signifies that Discover improperly trained the
agencies, rather than the agencies’ mistakes of their own accord.
Discover ultimately remains liable under 47 U.S.C. § 227(c)(5) for all
such violations.
In this case, however, in spite of
Mr. Durst’s admission that Discover trains its vendors’ trainers, two of
these vendors violated federal TCPA law. Consequently, there is a systemic
problem with Discover’s training protocol, one that apparently persists to
this day (based partially on the more recent July, 2006 call to a number
that has been on the National DO-NOT-CALL Registry since June, 2003).
(G) Discover’s “mistake defense”
is without merit
Part of the reason for these violations
of federal TCPA law is lack of care and concern for consumer privacy on the
part of Discover. Discover’s concern is the financial incentive it
admitted to in making the calls. Discover’s lack of concern for consumer
privacy is directly evidenced by its defense that it reached someone by accident
or mistake, and thus should not be penalized. In doing so, Discover
shows its callousness and indifference to consumer privacy in not admitting
that regardless of whether Discover intentionally or unintentionally rings
up people like Diana Mey, their privacy is still violated. Simply put,
regardless of Discover’s excuses, justification, or lack thereof, Discover
invaded in unsolicited fashion Ms. Mey’s privacy, seclusion, and time in
January, 2003. Ms. Mey suffered inconvenience and annoyance, regardless
of whom the telemarketers were attempting to reach; Discover’s position is
that so long as it did not intend to reach Ms. Mey, then Ms. Mey’s suffering
as a result of Discover’s mistake is uncompensable, and therefore irrelevant.
This mindset is troubling and breeds
the type of malfeasance and misfeasance seen in the case at hand.
With this in mind and in an attempt at stopping such ambivalence, the Federal
Communications Commission (FCC) made a ruling on this point in In re
Consumer.Net v. AT&T Corp., No. E-98-46, FCC 99-401 (Dec. 28, 1999)(hereinafter,
“Consumer.Net”) (produced previously with response to motion to dismiss),
as discussed in Ms. Mey’s prior briefs.
Therein, the FCC noted that 47 C.F.R.
§ 64.1200(e)(2)(iii), which provided that “the person or entity must
record the [do-not-call] request and place the subscriber’s name and telephone
number on the do-not-call list.....”, “...applies to a particular telephone
number.....” Consumer.Net, at 1.19. Later in its
decision, the FCC ruled as follows:
Because we find that the Commission’s rules require do-not-call
lists to be maintained on a
telephone number basis (rather than requiring requests from every
individual at a particular
residence), we conclude that AT&T’s February 24, 1998 telephone solicitation
violated the
Commission’s rules and orders.
Consumer.Net, at 1.36.
Significantly, the FCC made this ruling
based on the literal wording of the regulation, which applied a do-not-call
request to a particular number, and for policy reasons, one of which is the
fact that some consumers wishing to be placed on a do-not-call list will
not want to provide telemarketers with their name. Consumer.Net, at
1.36. Such consumers must still be placed on the do-not-call list based
solely on their telephone number because “interpreting the rule more narrowly
would defeat the objective of protecting consumer privacy.” Id. at
1.36 (citing TCPA Memorandum Opinion and Order, 10 FCC Rcd at 12, 395, para.
9). Further, “[t]he placement of the number on the do-not-call list
may not be circumscribed by the telemarketer’s claim that it was trying to
reach someone else at that same number”. Id. at 1.36.
A second policy reason behind the FCC’s
ruling was that allowing AT&T and companies such as Discover to “creat[e]
a virtually irrefutable defense that the telemarketer was trying to reach
‘someone else’ at [the] number” “eviscerate[s] the policy goals of the statute
in protecting telephone subscribers from unwanted telemarketing calls.”
See Id. at 1.37.
The Arbitrator should give deference
to this decision as the United States Supreme Court would. In this
regard, the United State Supreme Court has instructed courts
as follows:
The power of an administrative agency to administer a congressionally
created * * * program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or explicitly, by Congress.
If Congress has explicitly left a gap for the agency to fill, there is an
express delegation of authority to the agency to elucidate a specific provision
of the statute by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious, or manifestly contrary
to the statute. Sometimes the legislative delegation of authority to
an agency on a particular question is implicit rather than explicit. In such
a case, a court may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an agency.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
(1984), 467 U.S. 837, 843-844, cited by Charvat v. Dispatch Consumer Serv
., 95 Ohio St.3d 505, 508, 769 N.E.2d 829 (2002)(citations omitted).
This would induce Discover to create
and implement a more effective privacy-protection policy.
(H) Violations of the
first call are not exempt from the statutory penalty
As to Discover’s position that only
the second of two calls initiated within the same 12 month period is actionable,
it is not only contrary to the literal language of the TCPA statute, but
also is contrary to the policy underlying the statute. First, as quoted
above, section 227(c)(5) does not provide that only the second of the two
calls is actionable. Rather, it states that a victim of telephone solicitation
may recover for “violation of the regulations.” 47 U.S.C. § 227(c)(5).
Second, as stated in Rice v. Vacations Outlet of Colorado, L.L.C., No. 97CV3745
(June 1998),
The language of the TCPA...indicates that a telephone
solicitation that in any way violates the act or any regulations prescribed
under the statute may provide grounds for a private action. Thus, the
original call could be a violation of the act if the employee was not properly
trained as required by 47 C.F.R. § 64.1200(e)(2)(ii). ... The
reasoning of the court in Szefczek is the most persuasive, as it most closely
follows the language of the TCPA. Following the reasoning of Szefczek
as the Plaintiff argues, the Plaintiff does not have to show that both phone
calls violated the do-not-call provisions of the TCPA. In order to
prevail in court, Plaintiff would have to demonstrate that each call was
a solicitation which violated one or more provisions of the act or its regulations.
Allowing telemarketing companies a
safe-harbor provision that exculpates them from liability for the first call
encourages policies such as that of Discover wherein the telephone numbers
of 11.9 million cardmembers who request to be placed on the do-not-call request
are not scrubbed against the millions of campaign numbers to be called, solicited,
and telemarketed. TCPA concern is aimed towards protecting consumer
privacy, and not the encouragement of slothfulness and laxness by telemarketers
and their principals utilized in such a way to maximize profits.
(I) Discover’s violations
were willful and knowing because Discover knew or should have known its policies
and procedures were ineffective in preventing prohibited telephone solicitation
The Arbitrator should likewise refuse
Discover’s position that its policies and procedures are effective most of
the time. First, this position allows for idleness and stagnation of
attempts at compliance with federal law. If it is not broke, do not
fix it.
Additionally, calls to Ms. Mey may
not be justified or excused because of the purported effectiveness of Discover’s
policies and procedures since Discover’s policies and procedures are not
effective. At the Arbitration, Mr. Durst testified on behalf of Discover
that Discover had 17 million cardmembers at present which were on Discover’s
do-not-call list, and that about 11,900,000 (70% of 17 million) cardmembers
were on Discover’s do-not-call list in 2003.
Mr. Durst likewise testified that although
telephone numbers from do-not-call lists are compared to (scrubbed against)
other phone numbers in attempt to honor nonsolicitation requests, Discover
did not use its 11.9 million telephone numbers to scrub its telephone solicitation
lists for the December, 2002/January, 2003 campaign. This is in contravention
of federal law which, under such circumstances, should necessarily impose
a duty on Discover to scrub those numbers against its caller lists.
Given that Discover initiates approximately
15,000,000 telemarketing solicitation calls per year to residential telephone
numbers, some of which belong to both non-cardmembers and cardmembers who
are on Discover’s do-not-call list, such as Ms. Mey’s residential telephone
number, Discover clearly knew that some of these calls will be initiated
to the cardmembers listed on the do-not-call list.
This system was certainly ineffective
as to Ms. Mey because Discover’s campaign records reflected that 3 different
individuals living at 3 different addresses each had the same telephone number
as that of Ms. Mey in January, 2003, and which Ms. Mey instructed Discover
to place on its do-not-call list in the fall of 2002.Exhibit F, exhibit booklet,
at 29-31; Exhibit G, exhibit booklet, at 32-34. Discover knew very
well that calling the same phone number time and time again in attempt to
solicit a non-cardmember(s) reach people such as Ms. Mey who specifically
instructed that their telephone number be placed on the do-not-call list.
Moreover, Discover also knew of the
potential for violations insofar as Ms. Mey’s number was a recyled number.
Even though Discover may argue that the number had been “recycled” from Ms.
Mey to the three new people, Discover took no steps to ensure that if the
number was dialed, the call would not be initiated to Ms. Mey’s residential
phone line.
Further, although federal law required
Discover to record Ms. Mey’s October 29th, 2002 do-not-call request
at the time of its making, i.e. October 31st, 2002, the request was not recorded
as such on Discover’s mainframe account screen for the Mey account until
February 21, 2003, almost 4 months subsequent to Ms. Mey’s request.
Exhibit E, exhibit booklet, at 22; Exhibit Exhibit G, exhibit booklet,
at 32-34. This point notwithstanding, Discover’s system is so inefficient
that Ms. Mey would have been called even if the October 31st request had
been properly entered at the time of its making since Discover’s policy was
not to scrub Ms. Mey’s residential telephone number, i.e. one of the 11,
900,000 numbers in Discover’s do-not-call list, on its campaign telephone
solicitation numbers.
Discover attempts to defend itself
against these alarming facts by claiming that it receives few complaints.
Victims of telephone solicitation cannot complain, however, if they do not
have contact information by which to voice their complaints. Additionally,
the vast majority of the American population is undoubtedly unaware of their
TCPA rights. In this regard, most lawyers probably do not even know
the constituents of TCPA law. Thus, there are undoubtedly numerous
violations which go unaccounted for each day because people do not know their
rights. Also, of those people who receive calls in violation of the TCPA
who are aware of their rights, there may be numerous instances where they
simply chose not to file an action, and just ignore the solicitation.
In order for Ms. Mey to recover, Discover
forced her to spend time and effort to file suit and arbitrate her case -
this was when the calls at issue were tape-recorded and transcribed.
The question presents itself as to what happens in those cases in which the
calls have not been tape-recorded. Along these lines, it is easier
for Discover to refute people with less perseverance and determination for
the vindication of consumer rights than Ms. Mey.
Thus, it is clear that Discover does
not have an effective policy by virtue of which it may raise the affirmative
defense in 47 U.S.C. § 227(c)(5).
Even if it did have such a defense, Discover’s procedures were obviously
ineffective to protect Ms. Mey. Thus, Discover should be penalized for
this violation, even assuming that its procedures were effective for everyone
else, which they were not. Case precedent supports this point.
In Szefczek v. Hillsborough Beacon
, 286 N.J. Super. 247, 251, 668 A.2d 1099 (1995), the plaintiff filed a TPCA
claim, based on the defendant’s telephone calls to her, which the trial
court dismissed on the basis that the TCPA did not apply on its face. Id.
at 253. Upon reconsideration, the court determined that the plaintiff did,
in fact, state a cause of action based on the FCC regulations enacted under
(c)(2) of the statute, and entered judgment for the plaintiff for $1,500.00.
Id. The defendant then filed a motion for a new trial, which was granted.
Id.
In its opinion, the court addressed
whether the defendant violated the TCPA statute and determined that it did.
Id. at 266 - 268.
Importantly, the court went on to discuss
the defendant’s reliance on the affirmative defense in section (c)(5) of
the TCPA statute. In this regard, the court ruled as follows:
The evidence has established that defendant did in fact
establish and implement procedures to prevent violations of the regulations
which were, for the most part, effective. Therefore, defendant has
an affirmative defense under the above language. Clearly defendant’s
procedures were not effective in this case, however.
Id. at 268-69. The court then awarded damages to the plaintiff. Id. at
269.
Therefore, given the egregious of Discover’s
actions and its knowledge, (if it did not know, then it intentionally turned
a “blind eye” towards the true state of affairs), treble damages are proper
here, especially when considering the “knowing” and “willfully” standard,
as discussed in Ms. Mey’s Pre-Hearing Arbitration Brief.
Moreover, it bears noting that the
precedent of the Eastern District in Virginia in Real Time also requires
a ruling that Discover’s actions were wilful and knowing. First,
like the Real Time defendant, Discover called Ms. Mey on the four occasions
in question after receiving notification that the new telephone number should
not be called. Second, just as the Real Time defendant denied that the registration
prohibited the solicitation, Discover denied that the applicable statutes
and regulations prohibited phone call solicitations occurring after Discover
processed a do-not-call request, but before a new campaign. Discover errs
in this position - the law makes no such exception. Third, Discover
likewise hung-up on Ms. Mey in three of the four phone calls.
For these reasons, Discover should
be found liable in the case at bar, notwithstanding its purported affirmative
defense of effectiveness under 47 U.S.C. § 227(c)(5).
If Discover has to pay treble damages
for each of its violations in the January, 2003 calls, then this might serve
to protect consumers in the future from being harassed as Ms. Mey was.
In the words of the United States Senator Earnest "Fritz" Hollings during
his introduction of the Automated Telephone Consumer Protection Act, “They
wake us up in the morning; they interrupt our dinner at night; they force
the sick and elderly out of bed; they hound us until we want to rip the telephone
right out of the wall." 137 Cong. Rec. 30,821 (1991). Companies
should be forced to obey the law.
Therefore, the law, evidence, and arguments
introduced in this case strongly support Ms. Mey’s originally requested award.
WHEREFORE, the plaintiff, Diana Mey,
respectfully demands judgment against the defendant in the amount of
One Thousand Five Hundred Dollars ($1,500.00) for each violation which the
Arbitrator finds in this matter.
Respectfully submitted,
DIANA MEY, Plaintiff,
By:________________________________________
Of Counsel
James A. Byrum, Jr. (WV Bar #576)
John M. Jurco, (WV Bar #9535)
Schrader, Byrd & Companion, PLLC
Suite 500, The Maxwell Centre
32 - 20th Street
Wheeling, WV 26003
Counsel for Plaintiff
CERTIFICATE OF SERVICE
On this ____ day of September, 2006, the undersigned hereby certifies that
he served Discover Financial Services, Inc., the Arbitration Case Coordinator/JAMS,
and the Arbitrator with the foregoing Closing Argument, as follows:
William D. Wilmoth, Esq. (via hand-delivery)
Melanie Norris, Esq.
Steptoe & Johnson, PLLC
1223 Main Street, Suite 3000
P. O. Box 751
Wheeling, WV 26003-0751
Counsel for Defendant, Discover Financial Services, Inc.
Carolina M. El’Azar (via UPS next day delivery and facsimile)
Arbitration Case Coordinator
JAMS
555 13th Street, NW
Ste. 400 West
Washington, D.C.
20004
Michael K. Lewis, Esq. (via UPS next day delivery and facsimile)
Arbitrator
3508 Springland Lane, NW
Washington D.C. 20008-3119
DIANA MEY, Plaintiff,
By:_______________________________________
Of Counsel
James A. Byrum, Jr., Esq., (WV Bar #576)
John M. Jurco, (WV Bar #9535)
SCHRADER, BYRD & COMPANION, PLLC
The Maxwell Centre
32-20th Street, Suite 500
Wheeling, West Virginia 26003
(304) 233-3390