Supreme Court confused over telemarketing abuse case

posted at 10:05 am on November 29, 2011 by Jazz Shaw

I don’t think this is going to go down in the annals of judicial history along side Brown v. Board of Education and Dred Scott v. Sandford, but it may win some sort of award for making the Justices look silly. The Supremes are currently considering the case of Mims v. Arrow Financial Services. (No. 10-1195) It’s not that the case itself is silly, nor even particularly controversial. It deals with the Telephone Consumer Protection Act, which allows citizens to sue for up to $500 if they are repeatedly pestered by auto-dialers, recorded message calls or other such annoying, dinner interrupting intrusions via phone.

The question at hand seems to be whether or not the plaintiff may sue in federal court, rather than in “an appropriate court of that state” as specified in the act. From the initial reports, this one has the justices scratching their heads.

“This is the strangest statute I have ever seen,” Chief Justice John G. Roberts Jr. said near the end of a Supreme Court argument on Monday.

The justices had spent most of the previous hour trying to puzzle out the meaning of a part of 1991 federal law that addresses telemarketing abuses, and they had reached consensus on only one point.

“Both sides agree it’s odd, and all nine justices agree it’s odd,” Justice Elena Kagan said. “I mean, I think we can say that this statute is odd. And the question is, where do we go from there?”

This may be a bit too much of a peek behind the curtain. What they’re arguing here is not so much the result of one particular decision (affecting Marcus D. Mims) or even the viability of the statute. They’re trying to decide if plaintiffs have standing to change venue and have their case heard in federal court. I’m sure wiser legal heads than mine will be able to explain why this is so vexing, but it seems a rather odd point to get stuck on.

Obviously, I’m more interested in finding out if they’ll hear the suit I’d like to bring. It involves whether or not I can drive down to the offices of the people who call me repeatedly during dinner to tell me about a great new credit card protection program and pelt them with rotten tomatoes. As I see it, as long as I give them enough warning so everyone can put on protective goggles, there’s not a jury in the land that would send me up for it. At least not if they have a phone.

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and pelt them with rotten tomatoes

Not exactly what I would pelt them with. But then, I have four dogs who could supply everything I need…

jedijson on November 29, 2011 at 10:10 AM

I’d like to pelt the evil creatures that waste my fax toner and paper hawking trips to Cancun! Does anybody know what bridge they live under?

Allahs vulva on November 29, 2011 at 10:15 AM

I’m sure wiser legal heads than mine will be able to explain why this is so vexing, but it seems a rather odd point to get stuck on.

I’m no expert, but I play a lawyer at work.

Federal Courts are courts of limited subject matter jurisdiction. To get into federal court, one must either have a federal question or a diversity of parties and an amount in controversy in excess of $75,000. Here, you have neither.

The amount in controvery is only $500 (a statutory fine, not necessarily damages) and the parties are not necessarily diverse (may or may not be residents of the same state). In addition, there is no federal question at issue.

However, it is a federal statute that gives rise to the cause of action. Thus, the head scratching.

Claudin on November 29, 2011 at 10:22 AM

A Federal statute presumably creates a “Federal Question” giving rise to Federal jurisdiction. But the statute calls for jurisdiction in state courts. The legislation is contradictory as far as jurisdiction is concerned.

tommylotto on November 29, 2011 at 10:22 AM

OT but related

Shy Guy on November 29, 2011 at 10:23 AM

I don’t know why the Supreme Court Justices would look silly. The law is poorly written and that’s the fault of Congress who let staffers write the laws. Congressmen don’t know what the law entails except for what their staff tells them.

The purpose of judges is to intereperate a law and divine intent of the idiots that write the laws. A 500$ lawsuit does not belong in Federal court as this is a way for lawyers to make it more complicated and therefore more costly. It belongs in small claims court.

Vince on November 29, 2011 at 10:23 AM

A Federal law which requires one to bring an action in State court (when there might not even be a State law which has been violated) is indeed a queer beast.

I would expect Arrow to win this one.

unclesmrgol on November 29, 2011 at 10:23 AM

According to the original article, the problem is that Congress was attempting to allow the plaintiff to bring the case in local small claims court. This would prevent the defendant from deliberately moving to Federal court in order to drive up the cost and make it impossible for “regular people” to afford pursuing the case. On the other hand, many states already have such laws on the books and a federal law should be heard in federal court.

Another problem was that Congress also wanted to allow the state Attorneys General to be able to sue.

On the other hand, what if the plaintiff wanted to go into federal court because the state does not have such a law or he suspects that the state court would be beholden to the telemarketer.

I think that the original article explains this.

Perhaps you should ask some of the blogs that are written by law professors such as Legal Insurrection

sabbahillel on November 29, 2011 at 10:24 AM

Mr. Shaw, you have options. Caller I.D., don’t answer and that “don’t call list” works pretty well. It sounds like someone actually legislated frivolous lawsuits.

Cindy Munford on November 29, 2011 at 10:24 AM

There is no substantive value in this case for the public. There are no constitutional questions. It is a case about trying to decipher sloppy law. I don’t really care.

NotCoach on November 29, 2011 at 10:25 AM

The confusion might be with state courts enforcing federal law. State courts certainly have the authority to enforce federal law, but it’s typically done in a case as a matter of convenience.

For example, if a case is primarily tried under state law but might have collateral issues under federal law. Rather than trying the case in two courts, the case would be consolidated in state court.

I understand why the statute would want state courts to decide this issue. Federal courts have a minimum $75,000 amount in question. A $500 fine (however, keep in mind that’s per instance) would need 150 violations to qualify. If I was called by a telemarketer 150 times, I would probably be throwing rotten tomatoes too.

Meric1837 on November 29, 2011 at 10:27 AM

Federal Courts are courts of limited subject matter jurisdiction. To get into federal court, one must either have a federal question or a diversity of parties and an amount in controversy in excess of $75,000. Here, you have neither.

The amount in controvery is only $500 …

Claudin on November 29, 2011 at 10:22 AM

Hmm. So, that $20 mention in the 7th Amendment has been adjusted for inflation?

Your limits do not seem very Constitutional to me, given that at the time the 7th Amendment was written and ratified, it covered only Federal matters — it wasn’t until the 14th Amendment appeared that States were required to hew to the Federal standard.

unclesmrgol on November 29, 2011 at 10:28 AM

As I see it, as long as I give them enough warning so everyone can put on protective goggles, there’s not a jury in the land that would send me up for it.

Probably not, but be careful telling people about jury rights:
http://www.nytimes.com/2011/11/28/nyregion/brief-details-jury-nullification-case-against-julian-heicklen.html?_r=1

Jury nullification would be on your side in your case.

Abby Adams on November 29, 2011 at 10:31 AM

If the justices rule that it can be or must be tried in Federal court I think you’ll have less lawsuits on this matter. I’m confused as to why Arrow would be the defendent as this would be to their benefit.

Vince on November 29, 2011 at 10:32 AM

unclesmrgol on November 29, 2011 at 10:28 AM

That particular point in the 7th has been ignored by both the Congress and the courts forever. The $20 rule has never been incorporated.

NotCoach on November 29, 2011 at 10:33 AM

Mr. Shaw, you have options. Caller I.D., don’t answer and that “don’t call list” works pretty well. It sounds like someone actually legislated frivolous lawsuits.

Cindy Munford on November 29, 2011 at 10:24 AM

Caller ID costs money. The “Don’t Call List” hasn’t worked in years, due to its exclusions for political parties and nonprofit organizations.

So, given that your Freedom of Speech should stop at my threshold (I cannot be required to listen — or even to be inconvenienced — by your free speech while I am in my home), how do we enforce such a prohibition other than by law.

Every law has behind it a libertarian attempting to assert their right to be in your face.

unclesmrgol on November 29, 2011 at 10:33 AM

That particular point in the 7th has been ignored by both the Congress and the courts forever. The $20 rule has never been incorporated.

NotCoach on November 29, 2011 at 10:33 AM

Perhaps it’s time.

unclesmrgol on November 29, 2011 at 10:34 AM

Vince on November 29, 2011 at 10:32 AM

What if allowing federal suits exposes Arrow to a plethora of future suits?

NotCoach on November 29, 2011 at 10:35 AM

unclesmrgol on November 29, 2011 at 10:33 AM

The political & charity exclusion is indeed stupid but it works for the credit offers. As for caller ID, I was thinking that most people have cell phones now and it’s standard issue.

Cindy Munford on November 29, 2011 at 10:40 AM

Thank goodness for silent numbers!

OldEnglish on November 29, 2011 at 10:41 AM

So the bottom line is that Congress got involved and made it worse.

SouthernGent on November 29, 2011 at 10:59 AM

If a machine calls me, I always assume it wants to talk to another machine.

So I usually redirect voice ‘robo-calls’ to my FAX, where they can dutifully record a few minutes of “weeeeeeeeeeeeeeoooooooooooooooooooo” for their masters’ listening pleasure.

It seems to satisfy them, and they rarely call back.

landlines on November 29, 2011 at 11:15 AM

I’d like to pelt the evil creatures that waste my fax toner and paper hawking trips to Cancun! Does anybody know what bridge they live under?

Allahs vulva on November 29, 2011 at 10:15 AM

If the evil ones provide a FAX number, I like to take their message, overlay it with my own “DONT EVER CALL THIS NUMBER AGAIN” message, run the result through a program to change the image from white-on-black to black-on-white (to make sure they are using LOTS of toner), string together 15 copies or so….and then FAX the result back to them.

About 10 years ago, I had one persistent local office of a national office supply company which didn’t seem to get the “DONT FAX” message, even after multiple voice calls to the store manager. Fortunately, I have a FAX program which can be set up to send and re-send a message (white on black, naturally) every 15 minutes for a whole day to an offending number: thus tying up their FAX and draining their toner supply…and the 15 minute delay meant they had to man the FAX all day. That finally did it!!

landlines on November 29, 2011 at 11:40 AM

Correction: should be: “from black on white to white on black”

landlines on November 29, 2011 at 11:42 AM

I’d like to pelt the evil creatures that waste my fax toner and paper hawking trips to Cancun! Does anybody know what bridge they live under?

Allahs vulva on November 29, 2011 at 10:15 AM

After getting about 20 of these and calling the number to have them stopped about 20 times, I finally called them and went through the process of booking one half of a cruise ship for my “company”. After getting the booking agent extrememly excited, I then informed her that I would complete the booking the day after they stopped sending me this crap.

I was told to F off.

It was worth it.

dirtseller on November 29, 2011 at 12:04 PM

I actually sued one (a bill collector calling for someone I don’t know) and received $500.

zoyclem on November 29, 2011 at 12:08 PM

there’s not a jury in the land that would send me up for it. At least not if they have a phone.

Just pelting them with tomatoes? Hell, there’s not a jury that would convict you if you burned their offices to the ground.

GarandFan on November 29, 2011 at 12:08 PM

It seems to me that the justices are puzzled about the statute’s attempt to remove Diversity from the parties jurisdictional options. The statute also puzzles me, for the same reason.

In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court (the trial courts of general jurisdiction in the federal judiciary) has the power to hear a civil case where the persons that are parties are “diverse” in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens. (Corporations, as legal persons, may also be included). Diversity jurisdiction and federal-question jurisdiction (jurisdiction over issues arising under federal law) constitute the two primary categories of subject matter jurisdiction in U.S. federal courts.

jaime on November 29, 2011 at 1:49 PM

Also, since the statute is federal, it’s doubly puzzling that federal-question jurisdiction is disallowed.

Weird on its face.

jaime on November 29, 2011 at 1:53 PM

I’ve limited time, and didn’t read all of the other comments, so someone may have beaten me to this; but this is a pretty annoying “unfunded mandate”. The plaintiff is supposed to sue, for $500, in state court, for a federal offense. That means the state is on the hook for the cost of adjudication (certainly more than $500 — which it sounds like the state doesn’t even GET). Seems to me if the Feds pass the law, they should be on the hook for adjudication.

But then there’s the question of Federal jurisdiction when the parties are in the same state. My copy of the Constitution seems to indicate that this would be a matter for the states; I must have a misprint or something. :o/

In principle, I like the idea of socking it to annoying repeat callers, though; although $500 seems too low.

RegularJoe on November 29, 2011 at 2:24 PM

“I mean, I think we can say that this statute is odd. And the question is, where do we go from there?”

This is what Kagan should be saying about Obamacare instead of flaunting federal law and refusing to recuse herself.

madmonkphotog on November 29, 2011 at 2:48 PM

Ok, I have a bit of background in the Telephone Consumer Protection Act. If the Plaintiff is appealing, that is truly odd. Usually, the telemarketer is trying to get federal jurisdiction because then the Plaintiff gets legal costs that void any benefit to the lawsuit.

The Plaintiff may want federal jurisdiction in order to circumvent their state court rulings. This was the case in Charvat vs GVN. The state courts had ruled that you only get one violation per call, so he wanted to get that changed by going through federal court instead. He lost when the courts sided with the Defendant, and with that interpretation intact, his case was under the $75,000. If the courts would have ruled correctly, that “each such violation” means each violation of the regulations, and not “telephone call” he would have met the requirement to be in federal court.

The right of action states:
———————-
(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State -

(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or

(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
—————————-
This allows a Plaintiff to get DAMAGES for having had his privacy violated by illegal calls. Damages can be up to $1500 per violation. That’s $500 base amount trebled if the court feels like it.

The wording of the statute is particularly poor and causes plaintiffs a lot of problems.

If you want to know more about this area of law, you can look at my website: mydonotcalllist.com. I do not address the issue of federal courts since my state’s courts are adequate to my needs. I’ve received roughly $180,000 in damages or settlements since 2002.

No tomatoes for me. I like cash.

zonataman on November 29, 2011 at 4:07 PM

I actually sued one (a bill collector calling for someone I don’t know) and received $500.

zoyclem on November 29, 2011 at 12:08 PM

Hmm – I have had someone (likely a bill collector) calling for a Kimberly R….. and I told them she has never been at this number, and I have had the number for 20+ years. They took my number off their list. If I don’t know who is calling, I typically just flash (pick-up-hang-up) the phone, but I finally answered this one.

Dasher on November 29, 2011 at 5:15 PM

Unfortunately the law exempts politicians and charities from telemarketing calls. I have an elderly mother who never met a democrat or liberal charity that she didn’t like. Needless to say, her phone here gets lots of DC based calls (caller ID), unknowns, etc. I have taught her to never answer those calls and let them go to her answering machine. Lots of hangups on the machine. Now the ringing phone just annoys the heck out of me. I have developed a “nervous tick” that just seems to answer these calls and somehow my thumb finds the “end call” button almost immediately.

LOL

karenhasfreedom on November 29, 2011 at 7:44 PM