VIRGINA IS FOR LOVERS (of DNC Claims): New Case Confirms $5,000.00 Per Call State Private Right of Action Against Marketers
And you thought Florida was bad.
Virginia has a statute on the books that awards up to $5,000.00 per call if the state’s DNC rules are violated. And this includes circumstances where a call is otherwise legal but the marketer fails to identify him/herself by first and last name!
As I reported a while back–these claims may be the “future” after Facebook.
In one of the first cases yet under the statute, a court recently determined that an individual who received unwanted calls does have both Article III and statutory standing to sue for violations of the Virginia Act (the VTPPA) and to pursue $5,000.00 per call. The case is Cavey v. Homebuyers, Civil Action No. 1:21-cv-00119 (AJT/MSN), 2021 U.S. Dist. LEXIS 143000 (E.D. Va. June 7, 2021).
Here is the key language:
[T]he Virginia legislature did create a cause of action under the VTPPA that effectively recognizes a privacy right and protects its intrusions with sanctions. It is specific in its reach: persons on the Do Not Call Registry may not be subjected to certain types of solicitations and certain solicitors that may call must identify themselves by first and last name. See Va. Code §§ 59.1-514(b) and 59.1- 512. Here, Plaintiff has alleged specific conduct that violated his rights under the VTPPA—he registered on the Do Not Call Registry, yet was texted by [seller], and the sender of the text did not provide his or her name and only said he or she was from [seller].
You following this folks? The failure to identify the caller’s first and last name was a violation of the statute triggering up to $5,000.00 per call penalties. (Oh and attorney’s fees are available under the statute.)
Here’s what the statute says:
A telephone solicitor who makes a telephone solicitation call shall identify himself by his first and last names and the name of the person on whose behalf the telephone solicitation call is being made promptly upon making contact with the called person.
Mercifully the caller escaped trouble in this suit, however, because the calls at issue were to offer to PURCHASE the Plaintiff’s home, not to offer any good or service for sale. Because offering to buy something–like an offer to employ somebody–is generally not considered telemarketing (either under the TCPA or the VTPPA, apparently) the case was dismissed.
We’ll pay close attention to VTPPA cases moving forward–as should you. Happy Monday.