Tired of telemarketers, Virginia man decides to sue. It’s easier than you think

Scott Daugherty
The Virginian-Pilot

Jim Scruggs didn’t want a home warranty, and he certainly didn’t want any more robocalls trying to sell him one.

He told the telemarketer who rang his cellphone last year to never call him again, according to court documents.

But when the calls didn’t stop, Scruggs decided to chat up the telemarketers and find out who was behind the eight sales pitches he ultimately received.

And then he called an attorney.

Robocalls are a growing problem, with one company estimating 58.5 billion such calls were made last year alone.

Doing what most people would only dream, Scruggs filed a lawsuit last month against two New Jersey companies he blames for the robocalls. It seeks $24,000 in damages, plus attorney fees.

“I had to take a stand,” Scruggs, 61, of Chesapeake, Va., said in an interview. “If folks don’t take a stand against telemarketers, then we are never going to get away from it.”

Robocalls like the ones received by Scruggs are a growing problem, with one company estimating 58.5 billion such calls were made last year alone. YouMail, which analyzes data collected by its robocall blocking service, said that equates to about 178.3 calls per person.

Many of the people who received those calls are on the Federal Trade Commission’s National Do Not Call Registry, which currently contains more than 239 million numbers.

But only about 3.6 million people called the FTC last year to complain about robocalls. Another 1.4 million people called to complain they’d been contacted by live callers while on the Do Not Call list.

The FTC is trying to stem the tide. Since 2003, the commission has pursued 148 cases involving large-scale Do Not Call list and robocall violations. Included in those is a recent victory against Dish Network that is currently on appeal.

In all, the FTC has secured judgments totaling $435.6 million in civil penalties, officials said. Only $52.3 million of that has actually been collected, though.

Scruggs said he received the calls at the heart of the lawsuit in January 2019. He said he told the callers each time he wanted them to stop calling him and they kept calling.

From there, he reached out to the state attorney general’s office, but after deciding his complaint was gaining “no traction there,” he tracked down his attorney, Kevin Dillon.

Most people don’t think to involve an attorney when they get a call from a telemarketer. They don’t think anything can be done or that they can’t afford to file a lawsuit.

Dillon said that’s not true, though. He noted a key section in state and federal laws that were passed decades ago to protect people from unwanted telemarketing calls: fee shifting.

If Scruggs’ wins his case in court, Dillon said, the companies — CHW Group Inc. and Home Warranty Administrators, Inc. — will have to pay his fees.

“We really work to use those laws to our clients’ advantage,” said Dillon, explaining how the statutorily mandated fee shifting makes it financially feasible for attorneys like himself to research and file such lawsuits.

The mandated damages also make such cases profitable, he said. Each unwanted call is a violation of both a state and federal law, Dillon explained. And each violation carries a minimum $500 civil penalty.

If proven to have been done willfully, it is $1,500 per call. If the same telemarketer is behind 300 unwanted calls, Dillon said, “you are looking at a good chunk of change there.”

Scruggs said he believed the current damages outlined in the law are actually inadequate, though. He referred to it as “decimal dust.”

“That’s just the cost of doing business for these companies,” he said, arguing for state and federal lawmakers to hike up the penalties for do-not-call violations. “It needs to be truly punitive.”

CHW Group did not respond to requests for comment. No one answered at Home Warranty Administrators, and the company’s voicemail box was full.

Consumer advocates stressed people should do some legwork before calling a lawyer.

First, it is best if a person is on the National Do Not Call Registry. Second, a person should try to determine who is behind the calls before calling a lawyer.

The easiest way to do that, Dillon said, is to ask the telemarketer who called for the name of their company. A phone number might work, but many companies now use special technology to “spoof” a local number and make it appear the call is coming from nearby.

“You will usually need more than a number,” Dillon said, explaining that one of the most difficult aspects of wining such a lawsuit is determining whom to sue. “You have to have an actual defendant, not just a ghost entity.”

Scruggs said the telemarketers who called him were actually up front, openly identifying their companies.

Each law firm is different, but most will also want a prospective client to provide detailed records to prove when the calls were received and how long they lasted. Attorneys also like to see notes indicating what was said during each call.

Dillon said he wants to know if there was a delay or click before the telemarketer started speaking. He said that usually indicates the call was placed by an “autodialer,” something companies aren’t allowed to use without a person’s express consent.

Even if a person can locate all of that information, it can still be difficult for a person to really win such a lawsuit. Dillon said it is hard to collect when the company behind the calls is based in a foreign country.

Still, he said, it’s a “clear violation” of federal law whenever someone on the do-not-call list receives a robocall solicitation. And even a single call could lead to a “potentially good lawsuit,” he said.

Dillon and the FTC urged the public to try to collect information about the telemarketers who call them and report them to the authorities.

“The more data we have, the better we can target our law enforcement activities,” said Ian Barlow, FTC’s Do Not Call Program Coordinator.

Dillon said lawsuits are also a viable way to get companies to change their ways.

“In order to put a stop to it, we need more consumers to try,” he said.