Hacker News Board Hacker News, browsed like a classic message board
Live data from Hacker News

I won a suit against a party that sent me an unsolicited text message

twitter.com

Post reply on HN
Print view View original

131–140 of 145 posts

Re: I won a suit against a party that sent me an unsolicited text message

#131

Post by thathndude »

YeBanKo wrote: post #120
thathndude wrote: post #109

Earlier quoted context omitted.

Sure, I know of no jurisdiction that requires a pre-suit demand for a TCPA claim. “Issue a notice of demand explaining that you are seeking payment for TCPA violation and give them 10 days to respond. Send mail with signature delivery. (You can't sue without having issued a notice of demand.)” You do have to serve them once you file the case, but generally, I’m aware of no pre-suit-demand obligation for a TCPA case i…

Well, there is an article on this on Californian Court website: https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en "Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form." It does not specifically exclude TCPA statu…

In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know if there is one. But could be.)

Ultimately, OP was recounting what he did, and, as I said, I think OP did great. But he shared it for a reason, and so I wanted to make clear that everyone’s circumstances and judicial systems may be different. This is why I said:

“Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.”

A couple other potential, and admittedly minor, misstatements from OP

Trebling under the TCPA does not necessarily turn on whether you were on the DNC list (as OP states), it generally turns on a showing willfulness.

And winning a judgment does not mean that the Court just seizes the defendants property. I think that was addressed in another comment.

I wasn’t trying to crap on OP. I simply wanted to point out that OP‘s experience was specific, localized, and not universal. I thought this important because OP’s tweets read sort of like a how-to, and I want to educate others to the nuance that may be required in their specific jurisdictions.

not legal advice

Re: I won a suit against a party that sent me an unsolicited text message

#132

Post by thathndude »

poofsoda wrote: post #125
thathndude wrote: post #31

Lawyer here. I do this kind of work for a client. Good for this guy for taking the fight to the spammers. As we head into election season, a lot of us are going to get unsolicited text messages like this. You too can sue for them! Some of what was said in the tweets regarding your rights and what you have to do to file a claim are, in my experience and opinion, not correct. The general idea is right, but some of the…

Related question I’m hoping you know the answer to: can I use this as a recourse against debt collection calls or texts? I get numerous calls and texts for the prior owner of my cell phone number (to whom I have no relation to be clear) that have persisted for ~6 years despite repeatedly informing them I am not the individual they want to contact and asking to be removed from their records.

This is actually one of the most common TCPA claims out there these days.

They are sometimes referred to as “wrong number“ claims, or “reassigned number“ claims. You get a cell phone with a new number, and the old owner of that number was, for lack of a better word, a deadbeat. You spend the next 5 years being hounded by the previous owner’s collectors. This can potentially give rise to Claims under the TCPA

Re: I won a suit against a party that sent me an unsolicited text message

#134

Post by YeBanKo »

thathndude wrote: post #131
YeBanKo wrote: post #120

Earlier quoted context omitted.

Well, there is an article on this on Californian Court website: https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en "Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form." It does not specifically exclude TCPA statu…

In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know…

> I wasn’t trying to crap on OP.

Fair, I did not imply that you are, just being genuinely curious.

> In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law.

I don't understand this part, the court page says that you "must" do it. Is there a CA law that prohibits CA court from requiring this? My vague understanding is that many things in judicial system are "customary" or administratively driven. Maybe this is the case, while not required by CA law, but required by courts as an optimization technique.

> And we will set aside a preemption analysis because the TCPA is a federal law for another day.

Ah, this is actually interesting. So the TCPA is a federal law and he used it as a basis for his lawsuit in the CA court. How does it work? Can you bring a lawsuit based on federal law in a state law? I just pulled TCPA [1] and in the PRIVATE RIGHT OF ACTION section it clearly mentions a state court:

  A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State
If a federal law explicitly allows state courts, does a state court have to listen such cases unless there is a state law that prevents it?

[1] https://www.fcc.gov/sites/default/files/tcpa-rules.pdf

Re: I won a suit against a party that sent me an unsolicited text message

#135

Post by ddingus »

cwkoss wrote: post #81
game-of-throws wrote: post #49

Earlier quoted context omitted.

> As we head into election season, a lot of us are going to get unsolicited text messages like this. You too can sue for them! Can you elaborate? Every source I've seen says that politicians have exempted themselves from the spam laws. e.g. a random google result: https://www.cincinnati.com/story/news/politics/elections/202... > That's because the National Do Not Call Registry does not apply to political text message…

I would LOVE to be able to sue political spammers. I donated to many candidates in 2016 and have been getting crazy amounts of text spam from pols ive never heard of for the past 5 years. Politicians shouldn't have zero consequences for selling my personal data.

I did too, and so far I've been able to end the messages with "STOP"

They all appear to comply with that older school SMS norm. Who knew?

If you do it for a few, they tend to end overall. Now, instead of getting a few a day (right?!?), I get one out of the blue.

I did not "STOP" Bernie. I like Bernie. I don't like how it went with Bernie and all the people trying for better. Those messages have been considerate, infrequent, etc...

So far, all of the others hit pretty hard and fast, but do "STOP"

This suggests some entities, like Bernie for example, do maintain a list but are not necessarily sharing it. Other entities either share their lists, or will send messages for hire.

Your mileage may vary. Hope sharing these experiences helps.

Re: I won a suit against a party that sent me an unsolicited text message

#136

Post by dweekly »

thathndude wrote: post #131
YeBanKo wrote: post #120

Earlier quoted context omitted.

Well, there is an article on this on Californian Court website: https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en "Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form." It does not specifically exclude TCPA statu…

In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know…

OP here - really appreciate these bits of nuance and correction. That's how everyone learns!

Meta: I wish that Twitter had a better format for iterative discussion: "Hey, I just did X, I wonder how broadly it is applicable?" -> people join in with experience and data points offering nuance about the above -> output reference document with rough consensus and nuance. (This is kind of what happened with my Guide to Stock and Options like 10 years ago - I only got it materially right on the third draft after people constructively dogpiled in with the things I got wrong on the first two takes!)

Now back to the thread - is there case history showing whether presence on DNC constitutes (or doesn't) a wilful TCPA violation? My presumption was that an unsolicited text to a DNC number de facto constituted a wilful violation since best practice is to scrub DNC numbers from cold outreach.

Re: I won a suit against a party that sent me an unsolicited text message

#137

Post by flerchin »

aliqot wrote: post #32
flerchin wrote: post #19

Earlier quoted context omitted.

Yep, and folks could even have a credit of 500 phone calls a month, or whatever a reasonable number would be, so no cost to consumers at all. Instead of a tax, it should be a minimum charge that goes to the carriers. So that they would be incentivized to collect it.

In a world where we pay for stamps, why didn't bulk unsolicited mail go away? This won't work.

Bulk mail is priced to maximize profit to the postal service. Raising the rate 1000% would effectively end bulk mail. Adding a penny cost per spam would be more than a 1000% increase, and would effectively end the spam.

Re: I won a suit against a party that sent me an unsolicited text message

#139

Post by exabrial »

advisedwang wrote: post #119
exabrial wrote: post #94

Settling for $1200 with predjudice is a mistake... get a lawyer experienced in the area. You should be able to get roughly 2x the statutory amount by playing hardball!

$1500 is already triple damages. Why would they settle for more than that, when they could just default and $1500 would be the amount they owe with no further legal costs.

$1500 is actually the amount if the person is on the DNC list and has told you to stop. I'll try to find a source

Re: I won a suit against a party that sent me an unsolicited text message

#140

Post by Broken_Hippo »

deepsun wrote: post #115
eli wrote: post #29

Earlier quoted context omitted.

An impractical and difficult to implement idea that would have terrible unintended consequences.

> difficult to implement idea A lot of carriers has been billing by minute since the dawn of mobile telecom. And it's still in place in many (most?) countries. Only US/Canada/Mexico are used to unlimited phone calls.

A note, though: A prepaid phone in the US makes you pay for both incoming and outgoing calls unless things have changed. A prepaid phone in Norway only charges you for outgoing calls.
Post reply on HN