When Is A TCPA Violation “Willful?”
When is a TCPA violation willful? What is the standard of proof? The Eastern District of California addressed those questions last week in N.L. v. Credit One Bank, N.A., 2019 U.S. Dist. Lexis 64622, No. 2:17-cv-01512-JAM-DB, decided March 29, 2019.
A male infant (N.L.) by his mother and natural guardian, Sandra Lemos, sued Credit One and its three contracting vendors for violating the TCPA after receiving over a hundred calls in which the vendors sought to collect on a debt owed to Credit One by a third-party. After the plaintiff settled with the vendors, Credit One went to trial and the jury found that it had violated the TCPA through the calls made by the vendors.
But the plaintiff apparently would not take $500 per violation for an answer. Instead, mom asked the court to exercise its discretion under the statute to treble that amount for “willful” violations, arguing that she told a Credit One vendor to stop calling, but received 183 calls thereafter.
Credit One parried by taking another shot at escaping liability entirely, on the grounds that the expansive Marks v. Crunch decision in the Ninth Circuit, on which presumably the court instructed the jury, was wrongly decided. While the court could not buy that argument, it was persuaded by the stronger claim that the “evidence presented at trial does not show by a preponderance of the evidence that Credit One’s vendors ‘knowingly’ and ‘willfully’ continued to call Plaintiff after he requested they stop.” While actual knowledge by the offending callers was not necessary to show willfulness, “for the calls to have been deliberate violations, Plaintiff needed to demonstrate that the representatives calling after February 22, 2017, should have known that they were calling a person who did not provide prior express consent.”
The court noted that there were factual disputes regarding when and how the plaintiff told Credit One’s vendors to stop calling. Further, it was unclear whether the vendor’s representative heard or understood the plaintiff’s request to cease calling and also neglected to record in the account notes that further calls should not be made. Finally, testimony suggested that Credit One’s vendor failed to take proper care and follow Credit One’s policy by not documenting plaintiff’s singular request that the calls stop. The court found that such failure “is more indicative of negligence than willfulness.” Since the evidence at trial did not show that Credit One or its vendors continued to call “with the knowledge” that [plaintiff] had requested the calls cease, the court refused to find that treble damages were appropriate.