Antitrust Law Daily Wrap Up, PRIVACY—W.D. Ohio: Default judgment results in $39,400 damage award against Philippines company on TCPA and Ohio consumer protection claims, (Aug 23, 2013)

By Tobias J. Gillett, J.D., LL.M.

In a default judgment, the federal district court in Cincinnati has awarded $39,400 to an individual asserting that twelve calls placed by a Philippines company to the individual violated the Telephone Consumer Protection Act (TCPA) and the Ohio Consumer Sales Protection Act (OCSPA), among other claims (Lucas v. Telemarketer Calling from (407) 476-5680 and Other Telephone Numbers, August 22, 2013, Spiegel, A.).

Vincent Lucas filed suit against Manchester Services, Inc., Sub-Par Ventures, LLC, Qall Cord Philippines Ltd. Co., and an unknown entity, alleging violations of the TCPA, the OCSPA, the Ohio Telemarketing Act, the Ohio Telephone Solicitation Act, and state law tort claims of invasion of privacy, negligence, and nuisance. Lucas later stipulated to dismissal of Manchester and Sub-Par, but filed a second complaint adding Pacific Telecom Communications Group, Telephone Management Corp., Inc., International Telephone Corp., and three individual defendants.

The court clerk was unable to serve the Philippines company Qall Cord by international mail, and the magistrate approved service through e-mail. The clerk and a person designated by Lucas then sent two e-mails to Qall Cord, without receiving e-mail delivery failure notifications. With service perfected, Lucas filed a motion for entry of default judgment.

The court approved the magistrate judge’s recommendation that Lucas’s motion should be granted, but modified her recommended damage award. The court agreed with the magistrate judge’s determination that Lucas could recover $1,500 for each willful or knowing violation of the TCPA’s automated call requirements and $1,500 for each willful or knowing violation of the TCPA’s do-not-call list requirements, for a total of $3,000 per call, or $30,000 for the ten calls Qall Cord placed to Lucas. In addition, the court agreed with the magistrate’s determinations that violations of the TCPA could also constitute independent violations of the OCSPA, that Lucas had alleged facts to support three distinct claims for a total of $600 per call, and that Lucas should receive $6,000 for the ten calls, for a total recommended damage award of $36,000.

However, the court disagreed with the magistrate’s recommendation that Lucas should not receive any damage award with respect to two calls in which Qall Cord did not leave a message on Lucas’s answering machine. Instead, the court awarded him $1,500 per call in federal statutory damages and $200 per call in state statutory damages for those calls, for a total damage award of $39,400.

The court also approved the magistrate judge’s recommendation that Lucas’s first motion for preliminary injunctive relief should be denied as moot and his second motion for preliminary injunctive relief should be denied on its merits.

The case is No. 1:12-cv-00630.

Attorneys: Helen Marie MacMurray (MacMurray Petersen & Shuster, LLP) for Telemarketer Calling From (407) 476-5680 and Other Telephone Numbers. Anne Marie Sferra (Bricker & Eckler) for Manchester Services, Inc. Allison Leigh Harrison (MacMurray Petersen & Shuster, LLP) for Pacific Telecom Communications Group.

Companies: Pacific Telecom Communications Group; Telephone Management Corp., Inc.; International Telephone Corp.; Manchester Services, Inc.; Sub-Par Ventures, LLC; Qall Cord Philippines Ltd. Co.

Cases: Privacy StateUnfairTradePractices OhioNews