Car Dealer: Who To Name As Defendant

[zowensby]

What is the name of your state (only U.S. law)? Arizona


Hello,

I may have to take a car dealership to small claims court because of repeated Telephone Consumer Protection Act (TCPA) violations. My research has provided most of what I need for the case, but one detail remains. Who do I technically file the small claims suit against? The president of the company, since I have already sent him a certified letter on the matter (without response after confirmed delivery)? I also have two employees of the company that I have spoken with in begging them to stop calling me with TCPA violations, but I view them as witnesses if anything.


Thanks,
Dr. Z.

 

[Mass_Shyster]

What is the name of your state (only U.S. law)? Arizona


Hello,

I may have to take a car dealership to small claims court because of repeated Telephone Consumer Protection Act (TCPA) violations. My research has provided most of what I need for the case, but one detail remains. Who do I technically file the small claims suit against? The president of the company, since I have already sent him a certified letter on the matter (without response after confirmed delivery)? I also have two employees of the company that I have spoken with in begging them to stop calling me with TCPA violations, but I view them as witnesses if anything.


Thanks,
Dr. Z.

You would sue the owner.

 

[zowensby]

You would sue the owner.

Thanks for the reply. I hope that I can ask you (and/or everyone else) one more question on the matter...

According to the TCPA, some informative calls are allowed, where all solicitations are not. The repeated automated message that I received stated these items:

- Company name
- "We noticed that you MAY have missed your last service appointment" (There was no appointment that I scheduled.)
- "If you would like to make an appointment or have questions, please call (their service department phone number)

I view this as a solicitation. Do you think that it could be successfully argued in small claims court that it is nothing more than business courtesy information?


Thanks,
Dr. Z.

 

[Zigner]

Nope - in fact, it sounds like you have prior business contacts with them.

 

[justalayman]

You would sue the owner.

????????????????

The president of the company,

sounds like the business structure may be such that OP would sue the company.

 

[zowensby]

Nope - in fact, it sounds like you have prior business contacts with them.

Yes, I did do business with this company in the past, but after the first automated telephone solicitation since my last service appointment I specifically stated in a recorded conversation (legal in Arizona) with a company employee that:

- Our business relationship had ended
- Do not call me again with automated solicitations
- Place my name on your company's Do Not Call list
- The phone you are calling is a mobile number
- I may choose to take legal action if the calls continue

Unfortunately, the calls kept coming. They are all recorded. It seems like a pretty clear cut string of violations to me.


Thanks,
Dr. Z.

 

[racer72]

Yes, I did do business with this company in the past, but after the first automated telephone solicitation since my last service appointment I specifically stated in a recorded conversation (legal in Arizona) with a company employee that:

The TCPA is a federal, not a state law. Make your desires known in writing, sent CRRR. The law allows for violations to be heard in state court, otherwise federal rules apply.

 

[zowensby]

The TCPA is a federal, not a state law. Make your desires known in writing, sent CRRR. The law allows for violations to be heard in state court, otherwise federal rules apply.

There are several references of small claims court cases that involve the TCPA and plaintiffs successfully winning judgements based upon this act. Here is a concise excerpt explaining the issue:

"The TCPA is a strict liability statute. Each call in violation of the statute is subject to a $500.00 penalty. 47 U.S.C. § 227(b)(3)(B). If the caller willful or knowingly violates the statute, then each statutory penalty can be trebled. 47 U.S.C. § 227(b)(3). Congress wanted this penalty to given consumers a way to recover damages in small claims court, without the need for attorneys. 137 Cong. Rec. S 16204, S16205-S16206."

 

[TheGeekess]

Yes, I did do business with this company in the past, but after the first automated telephone solicitation since my last service appointment I specifically stated in a recorded conversation (legal in Arizona) with a company employee that:

- Our business relationship had ended
- Do not call me again with automated solicitations
- Place my name on your company's Do Not Call list
- The phone you are calling is a mobile number
- I may choose to take legal action if the calls continue

Unfortunately, the calls kept coming. They are all recorded. It seems like a pretty clear cut string of violations to me.


Thanks,
Dr. Z.

Then get an app that allows you to block certain phone numbers. Problem solved.

 

[dcatz]

OP – justalayman's point is critical with any civil litigation or you may find yourself on the wrong end of a successful and expensive defense. In light of the FCC’s 2-15-12 rule changes to the TCPA, and specifically the change that put teeth in the Telemarketing Sales Rule loophole that allowed telemarketers to place calls to customers with whom they had an established business relationship, Zigner’s point need not be a problem, if you’re handling your obligations properly. I’m posting because it’s not completely clear that you’ve laid the groundwork for successful litigation.

The rule change deals with that point and, among others, issues of prior written consent, cell phones and opt-out for robocalls. You’ve said that you’ve fully prepared, and racer72 is right about the availability of a state court action but, have you read the new rules? If you want an injunction, can you get that in Small Claims in your state? Do you know what is necessary to get from “violation” to “willful and knowing” (and treble damages)? Are you on the Do Not Call Registry and understand the implications if so or if not?

I’m not trying to be offensive, and these and more all may be issues you’ve considered and addressed, but the responses make me wonder. Don’t feel compelled to respond. These are rhetorical questions and food for thought.

 

[zowensby]

OP – justalayman's point is critical with any civil litigation or you may find yourself on the wrong end of a successful and expensive defense. In light of the FCC’s 2-15-12 rule changes to the TCPA, and specifically the change that put teeth in the Telemarketing Sales Rule loophole that allowed telemarketers to place calls to customers with whom they had an established business relationship, Zigner’s point need not be a problem, if you’re handling your obligations properly. I’m posting because it’s not completely clear that you’ve laid the groundwork for successful litigation.

The rule change deals with that point and, among others, issues of prior written consent, cell phones and opt-out for robocalls. You’ve said that you’ve fully prepared, and racer72 is right about the availability of a state court action but, have you read the new rules? If you want an injunction, can you get that in Small Claims in your state? Do you know what is necessary to get from “violation” to “willful and knowing” (and treble damages)? Are you on the Do Not Call Registry and understand the implications if so or if not?

I’m not trying to be offensive, and these and more all may be issues you’ve considered and addressed, but the responses make me wonder. Don’t feel compelled to respond. These are rhetorical questions and food for thought.

Dcatz,

Hey, as a senior member, thanks for taking the time to chime in here and no, you did not come across offensive...

I could seek more in damages, but I am aiming at one automated telephone solicitation call (AFTER I made it painfully obvious to this company that I did not wish to be contacted again) and I will ask for $1000 in restitution. The codes that I will site are:

- 47 U.S.C. 227(b)(1)(A)(iii) prohibits calling cell phones (whether the call is from a live or a recorded message).
- 47 U.S.C. 227(b)(1)(B) prohibits calling landlines or cell phones with a recorded message unless the company calling has a business relationship with the recipient.
- 47 U.S.C. 227(b)(3) provides consumers harmed by violations of the TCPA with the right to sue the violator for $500 per violation.

Sure, I could say that they willfully violated these laws or count a recorded voicemail to the general service manager of the company stating that I did not wish to be contacted again, but it is possible that there were honest mistakes in the receiving of my request by the defendant. I could also include all of the other calls in siting violations according to the recent law changes involving a prior business relationship, require express written consent, and that such automated calls have the opt out interactive option, but these changes to the law happened only days before the recent string of harassing calls. Yup, I am being a nice (reasonable) guy and only hitting with half, but an unwavering punch. Regardless, my goal to stop future calls and send a strong message via a small compensation for my inconvenience should still be met.

So, I guess that I am at a loss as to what inefficiencies you think my case has and very respectful of anyone who takes the time to educate me. I am hoping that with my over-preparation, documentation, and the informality of small claims court, that the judge will see that I have done all I reasonably could as a consumer to stop such harassing calls and grant a favorable judgement based upon the laws sited. If there is a technicality that I missed and I loose the case, at least I know I gave it my best shot and the company calling me has wasted their time/money also.

BTW, here is a concise review of the TCPA changes:

https://www.federalregister.gov/articles/2012/06/11/2012-13862/telephone-consumer-protection-act-of-1991


Thanks,
Dr. Z.

 

[dcatz]

Ha, Ha. I bow to you, OP. That's the Order that has now become a Rule. Ironically, your original question got short-shrift and you probably know more about the underlying subject than most who commented on the TCPA. A member’s status is just a number in my opinion; everybody starts at 1. I post in threads that I feel warrant more input and most are far from unique, but I had recent involvement with the TCPA in the context of a spam-fax case (with one anonymous agent, hundreds of anonymous principals and hundreds of throw-away “800” opt-out numbers). It was an expensive headache seeking remedies beyond the jurisdiction of any Small Claims court. And if Arizona’s is still $2,500, and you were determined to proceed, I felt you should be sure of winning or the time and expense would not be worth it. As it is, if you don’t have to do discovery and can establish a prima facie case within the limited confines of Small Claims, I still wonder if proving a single violation with respect to you will feel justified. You’ll probably still get a settlement offer, if the dealership thinks it may be culpable, or you’ll have a judgment that you’ll have to collect, while the dealership turns to “Plan B”. There was a recent TCPA judgment for $30M; this won’t be it. I don’t believe in litigating for principle (principal and interest ok). I’m wondering if that certified letter to the top officer won’t get you satisfaction (and a full tune-up) that’s better than the sharp stick in the eye you get from an uninformed court.

BTW, as you prepare, you can find useful data on the EPIC (Electronic Information Privacy Center) site - http://epic.org/privacy/telemarketing - where one link takes you to the Arizona Telephone Solicitation Statute.

As to your original question, you’ll need to determine the legal composition of the company:
The web site of your Secretary of State will tell you if it’s a corporation or an LLC. If either, it will also give you the name and address of the registered agent for service of process. It will also give you information on limited partnerships.
A corporation’s president may also be the registered agent. For an LLC, you can also serve the General Manager and, again, he/she may be the same person. If you’ve tried unsuccessfully to serve that person, you can then serve the PIC (Person In Charge and authorized to accept service of process).
If the business is a sole proprietorship “doing business as” “XYZ Auto”, see who registered the fictitious name for the county.
Service can apparently be made by registered or certified mail and there is apparently some difference between counties. Here is a starting point for forms: http://www.azcourts.gov/PublicServices/CivilLaw/EvictionsSmallClaims.aspx
Notwithstanding that you can serve by mail, I think a private process server is more dramatic and likely to get a pre-trial response.

Good luck,

 

[tranquility]

If I understood it all, I'm sure I completely agree with dcatz.

As perspective, such laws existed for junk faxes for quite a while. We received many "illegal" faxes. I got tired and started to have the secretaries log them in and developed facts that I thought would lead to a successful suit.

Um......yea, not so much. The judge was not favorable to the (clearly enacted) theory and found for the defEndant. Believe me, I was prepared and knew the law cold. Still lost. Let's face it, business's is business. Even if you get a reasonable law passed and your facts fit exactly with tHe harm trying to be prevented, does not mean there is a pot of gold at the end of the rainbow.

Please let us know how things go. I would dearly love to supplement my income with such rubbish. I get a ton of calls and would love Pto stop them; or, listen to them while om a holiday in Hawaii.

 

[racer72]

There are several references of small claims court cases that involve the TCPA and plaintiffs successfully winning judgements based upon this act. Here is a concise excerpt explaining the issue:

"The TCPA is a strict liability statute. Each call in violation of the statute is subject to a $500.00 penalty. 47 U.S.C. § 227(b)(3)(B). If the caller willful or knowingly violates the statute, then each statutory penalty can be trebled. 47 U.S.C. § 227(b)(3). Congress wanted this penalty to given consumers a way to recover damages in small claims court, without the need for attorneys. 137 Cong. Rec. S 16204, S16205-S16206."

What does this have to do with the notification you gave the caller. Nothing. Nada. Zip point squat. You verbal notification does not meet the standards of federal law. Unless you give proper notification, your case will go no where.

 

[zowensby]

What does this have to do with the notification you gave the caller. Nothing. Nada. Zip point squat. You verbal notification does not meet the standards of federal law. Unless you give proper notification, your case will go no where.

Thanks for your perspective, but all I can find in all the TCPA that I have read is for the caller to be "notified" that those who they are calling wish not to be contacted again. Of course, key phrases like "place me on your Do Not Call List" and "our business relationship has ended" help, but proof of notification to terminate contact is undefined. I actually have a legally recorded phone call of this request and an employee of the company acknowledging my wishes. Can you help me see where more action in this communication is required?