Judge Denies Damages for Multiple TCPA Violations on a Single Call
U.S. District Judge David Horan for Northern Texas in Dallas signed a memorandum opinion and order Tuesday (docket 3:22-cv-00052) granting in part and denying in part Telephone Consumer Protection Act plaintiff Steve Noviello’s motion for an award of extra damages arising from Telephone Consumer Protection Act violations. Horan limited Noviello's recovery to the $6,500 in damages a jury awarded him in a Feb. 28 verdict in his favor for 13 unlawful calls or texts made to a number listed on the federal do not call registry since 2016.
Noviello sued the Holloway Funding Group in January 2022, alleging the business loan specialist inundated him with telemarketing calls and texts that continued even after he told the company to stop. The added damages he sought from Horan were for the same calls placed in violation of Holloway’s internal DNC registry, plus treble damages for Holloway’s willful and knowing breach of the TPCA.
Noviello points to no case law “that permits a plaintiff to recover damages for multiple violations” under the TCPA for a single call or text, said Horan’s opinion. Nor has the court located any case law adopting the position “that Noviello presses here,” it said. “When presented with the issue of whether a plaintiff can recover damages for multiple violations” under the TCPA for a single call or text, the 6th U.S. Circuit Appeal Court “persuasively explained” that a district court correctly concluded that the TCPA doesn’t allow for the award of statutory damages for each violation during a call, but instead limits statutory damages to one award per call, it said.
The TCPA gives a court discretion to treble damages if it finds a defendant willfully or knowingly violated the statute, but Horan said this wasn’t the case in Noviello’s claims against Holloway, in his opinion. Courts have interpreted “willful or knowing” as not requiring bad faith, but only that the person had reason to know, or should have known, that his conduct would violate the statute, it said.
Other courts, such as in the 4th Circuit’s 2019 decision in Krakauer v. Dish Network, “endorsed the position” that a defendant would only be liable for treble damages if its actions demonstrated indifference to ongoing violations and a conscious disregard for compliance with the law, said Horan’s opinion. “After hearing the evidence at trial,” the court can’t conclude “that it supports a finding that Holloway willfully or knowingly violated the regulations” under the TCPA, it said.
The one undisputed prerecorded call that Holloway placed to Noviello “supports a finding of negligence” on Holloway’s part, “not a knowing or willful violation of the prohibition on calling someone on a number on which he has placed a do-not-call request,” said Horan’s opinion. The evidence at trial also doesn’t support a knowing or willful finding, even after Holloway told Noviello it would stop calling, and the same representative who told him that texted him four more times, it said. “Absent evidence to support that the actual violations were committed knowingly or willfully,” Noviello’s arguments for increased damages fail, it said.