Consent Decree in Robocall Case to Suppress 2020 Black Vote Would Avert Next Week’s Trial

A week before Jacob Wohl and Jack Burkman were to stand trial before a jury on damages for their roles in the robocall campaign to suppress Black citizens' mail-in votes in the run-up to the 2020 election (see 2312040022), they and the 10 plaintiffs in the case against them, including New York Attorney General Letitia James (D), proposed a consent decree Monday (docket 1:20-cv-08668) that would avert that trial.

U.S. District Judge Jed Rakoff for Southern New York in Manhattan, in a telephone status conference Monday, vacated that day’s deadline for pretrial filings. The plaintiffs and defendants Wohl and Burkman “share the mutual desire to settle this action and to avoid protracted, expensive, and unnecessary litigation,” said the proposed consent decree.

U.S. District Judge Victor Marrero granted summary judgment against Wohl and Burkman in a 111-page order he signed in March 2023 (see 2303090003). Marrero found that Wohl and Burkman “set into motion a full-scale voter suppression operation during the summer of 2020 to discourage eligible voters from voting” by targeting mail-in votes in Black neighborhoods in Atlanta, Charlotte, Cleveland, Detroit, Milwaukee, Philadelphia and Richmond. Rakoff took over the case from Marrero in November (see 2311290024).

The consent decree, which awaits Rakoff’s signature, would be in force for eight years, apparently to deter Wohl and Burkman from repeating their unlawful 2020 robocall conduct for the next two presidential election cycles. Wohl and Burkman agree to pay the plaintiffs $393,000 of a suspended $1 million penalty over roughly the next five years to settle the plaintiffs’ monetary claims, said the proposed decree.

Of the $393,000 penalty, half the payments would go to the nine individual plaintiffs, the rest to AG James’ office for distribution as restitution to New York-based victims who received the 2020 robocalls. Marrero's summary judgment order found the conduct violated the 1871 Ku Klux Klan Act, the 1957 Civil Rights Act and the 1965 Voting Rights Act, plus three New York civil rights and anti-fraud laws, said the proposed decree.

The initial $20,000 portion of the penalty would be due in 20 days, with another $30,000 installment due Sept. 1 and an additional $55,000 tranche due Dec. 31, said the consent decree. Wohl and Burkman would then be obligated to pay $6,000 a month for the 48 months beginning March 1, 2025, it said. If all the payments are made on time, the plaintiffs won’t seek payment of the $607,000 suspended balance, it said. The FCC previously fined Wohl and Burkman $5.1 million for their roles in the 2020 robocall scheme (see 2306060052).

The consent decree would enjoin Wohl and Burkman “from knowingly creating, sponsoring, or transmitting any robocall” or other “mass communication” that would “intimidate or deter voters from voting by any method in any election,” said the document. They also would be barred from knowingly creating, sponsoring or transmitting robocalls that contain “any false or fraudulent information concerning voting, the right to vote, or the conduct of elections,” it said. Their 2020 robocalls falsely warned call recipients that the personal information of anybody who voted by mail would be shared with police departments to track down old warrants and with credit card companies to collect outstanding debts.

The nearly $200,000 destined for AG James’ office is a far cry from the $2.75 million in damages the office said in March 2023 it would seek at trial (see 2303290031). Based on Marrero’s finding that Wohl and Burkman violated New York civil rights laws, James' office said then it would seek statutory damages of $500 for each of the 5,494 calls found to have been made on the defendants’ behalf to phone numbers with New York area codes.

The National Coalition on Black Civic Participation brought the original complaint against Wohl and Burkman in October 2020, when the unlawful conduct was still taking place. James entered the case as a plaintiff-intervenor in May 2021.