Perpetrators of Robocall to Suppress 2020 Black Vote ‘Insist’ on Jury Trial

Contrary to the plaintiffs’ willingness to waive a jury trial against defendants Jacob Wohl and Jack Burkman for their roles in the threatening and intimidating robocall to suppress Black citizens' mail-in votes in the 2020 election (see 2303290031), Wohl and Burkman “to be perfectly clear do not waive their constitutional right to a jury trial,” their attorney David Schwartz wrote U.S. District Judge Victor Marrero for Southern New York in a letter response Thursday (docket 1:20-cv-08668). The defendants “rely on this venerable right and do insist on a jury trial,” said Schwartz.

The compensatory damages the plaintiffs seek are “negligible,” said Schwartz. Wohl and Burkman “incurred no cognizable injuries, no material out of pocket losses or monetary harms,” he said. “We believe based on prior testimony that no claims for impairment of reputation or personal humiliation exist and that claims of mental anguish and suffering are not supported by the record adduced to date,” he said.

A jury may decide the damages the plaintiffs complain of are “highly speculative,” said Schwartz. It “warrants noting” that the court previously accepted evidence “that only 29,117 out of the 85,309 phone numbers allegedly called were deemed completed,” he said. “The relative efficacy of robocalls in general versus the impact of one singular roll out of calls would seem to be a fair question for a jury.”

Of the nearly $2.75 million in statutory damages that New York Attorney General Letitia James (D) said she will seek for the 5,494 calls made to New York phone numbers, the plaintiffs “do not represent where this 5,494 figure is derived from,” said Schwartz. “A conscientious jury would no doubt like to look to the forensic science behind how one determines a connection was made in assessing actual damages,” he said.

Wohl and Burkman “will not, for purposes of this letter, reiterate or relitigate their belief no harm befell any recipient of a robocall,” said Schwartz. They “rather emphasize that seeking a statutory penalty for calls that were never received, can't be what was contemplated by the statute,” he said. One would otherwise “be imposing penalties for what are being deemed violations, but are at best, failed attempts at violations,” he said. That simply doesn’t “comport with any rationale statutory construction,” he said.

AG James hasn’t “substantiated” that the 5,494 calls were “actually effectuated,” said Schwartz. “We know a handful” of the individual consumer plaintiffs were New Yorkers, he said. Perhaps the AG can claim these four or five claimants in assessing statutory damages, he said. “But as to the 5494, in addition to showing forensically how the AG arrived at that number and confirmed that this universe actually received a completed a/k/a successful Robocall, they would also seem to have to show how many of those NY area code numbers are truly still in NY,” he said.

As has “already been observed in these proceedings” and at the FCC, “folks are now known to port landlines to cellphones and for the past several years, there has been a mass exodus of New Yorkers,” said Schwartz. He presumes New York civil rights laws “were not intended to protect Floridian residents from nuisance calls,” he said.

As for the punitive damages that the plaintiffs seek against Wohl and Burkman for their allegedly egregious conduct, “no one testified” that the robocall actually “deterred them one jot” from voting, said Schwartz. Punitive damages are “overkill,” he said.

A jury of one’s peers “may or may not see or attach the same weight of egregiousness” to the defendants’ “freestanding” robocall, said Schwartz. Jury members may conclude that spending a few thousand dollars on a robocall, “which could not reasonably be expected to have any [discernible] impact on a national election, was simply part of their schtick,” he said. “In any case,” it’s appropriate to leave the levying of punitive damages to a jury, he said.