John Buchmiller is being sued in New Mexico and California for illegal telemarketing in violation of 47 USC §227 of the Telephone Consumer Protection Act. 18-cv-2845 LAB JLB is the case number in the Southern District of California.
My opinion is that Buchmiller is a mean and nasty person. I had a horrible experience with John Buchmiller.
Buchmiller hired this person to run a boiler-room full of telemarketers for him and his Attorneys Tax Relief, LLC. They used robo-dialers to call many, many people.
In 2014, the 9th Circuit in Gomez v. Campbell-Ewald Co. (9th Cir. 2014) 768 F.3d 871, 878, regarding TCPA vicarious liability held:
“[t]his interpretation is consistent with that of the statute’s implementing agency, which has repeatedly acknowledged the existence of vicarious liability under the TCPA. The Federal Communications Commission is expressly imbued with authority to “prescribe regulations to implement the requirements” of the TCPA. 47 U.S.C. § 227(b)(2). As early as 1995, the FCC stated that “[c]alls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call.” In re Rules and Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12397 (1995).
More recently, the FCC has clarified that vicarious liability is imposed “under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers.” In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6574 (2013). Because Congress has not spoken directly to this issue and because the FCC’s interpretation was included in a fully adjudicated declaratory ruling, the interpretation must be afforded Chevron deference. Metrophones Telecomm., Inc. v. Global Crossing Telecomm., Inc., 423 F.3d 1056, 1065 (9th Cir. 2005) (citing Nat’l Cable & Telecomms. a*s’n v. Brand X Internet Servs., 545 U.S. 967, 980-85, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005)) (other citations omitted), aff’d, 550 U.S. 45, 127 S. Ct. 1513, 167 L. Ed. 2d 422 (2007)” See alsoRestatement (Third) of Agency (2006) §§ 2.01, 2.03, 4.01 (explaining that agency may be established by express authorization, implicit authorization, or ratification).”Lawyer Ethics
As Judge Easterbrook of the Seventh Circuit recently explained in a TCPA case regarding calls to a non-debtor similar to this one:
The Telephone Consumer Protection Act…is well known for
its provisions limiting junk-fax transmissions. A less-litigated
part of the Act curtails the use of automated dialers and
prerecorded messages to cell phones, whose subscribers often
are billed by the minute as soon as the call is answered–and
routing a call to voicemail counts as answering the call. An
automated call to a landline phone can be an annoyance; an
automated call to a cell phone adds expense to annoyance.
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012).Craig v. County of Los Angeles (1990)
The FCC also recognized that “wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Report and Order, 18 F.C.C. Rcd. 14014, 14115 ¶ 165 (2003).
Standing is proper under Article III of the Constitution of the United States of America because Plaintiff’s claims state:
A valid injury in fact;
which is traceable to the conduct of Defendants;
and is likely to be redressed by a favorable judicial decision. See, Spokeo, Inc. v. Robins, 578 U.S.____(2016) at 6, and Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560. In order to meet the standard laid out in Spokeo and Lujan, Plaintiffs must clearly allege facts demonstrating all three prongs above.
The “Injury in Fact” Prong.
Plaintiff’s injury, in fact, must be both “concrete” and “particularized” in order to satisfy the requirements of Article III of the Constitution, as laid out in Spokeo (Id.). For an injury to be “concrete,” it must be a de facto injury, meaning that it actually exists. In the present case, Plaintiff was called on his cellular phone at least five (5) times by Defendants. In fact, Plaintiff expressly informed Defendants to cease and desist from all future telemarketing on the very first call. Such calls are a nuisance, an invasion of privacy, and an expense to Plaintiff in multiple ways. Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012). Defendant’s invasion of Plaintiff’s right to privacy is further exacerbated by the fact that Plaintiff’s phone number, at all times relevant to this litigation, was on the National Do-Not-Call Registry ( hereinafter, “DNC Registry”). As well, Plaintiff had no prior business relationship with Defendants prior to receiving the seriously harassing and annoying calls as well as the extortionate threats by Prosperify. All of Plaintiff’s injuries are concrete and de facto. For an injury to be “particularized” means that the injury must “affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. ___ (2016) at 14. In the instant case, it was Plaintiff’s phone that was called and it was Plaintiff himself who answered the calls. It was Plaintiff’s personal privacy and peace that was invaded by Defendant’s persistent phone calls using an ATDS and a pre-recoded message, despite Plaintiff having no prior business relationship with Defendants and Plaintiff’s attempt to avoid the damage by registering his number on the DNC Registry. Finally, Plaintiff alone is responsible to pay the bill on his cellular phone, his home phone and to pay the bill for his electric utility company kilowatt-hour power usage. All of these injuries are particularized and specific to Plaintiff and will be the same injuries suffered by Plaintiff.
The “Traceable to the Conduct of Defendants” Prong
The second prong required to establish standing at the pleadings phase is that Plaintiff must allege facts to show that his injury is traceable to the conduct of Defendants. In the instant case, this prong is met by the fact that the calls to Plaintiff’s cellular phone and home phone (land line) were placed either by Defendants directly, or by Defendants’ agent at the direction of Defendants.
The “Injury is Likely to be Redressed by a Favorable Judicial Opinion” Prong
The third prong to establish standing at the pleadings phase requires Plaintiff to allege facts to show that the injury is likely to be redressed by a favorable judicial opinion. In the present case, Plaintiff’s Prayers for Relief include a request for damages for each call made by Defendants, as authorized by statute in 47 U.S.C. § 227. The statutory damages were set by Congress and specifically redress the financial damages suffered by Plaintiff. Furthermore, Plaintiff’s Prayers for Relief request injunctive relief to restrain Defendants from the alleged abusive practices in the future. The award of monetary damages and the order for injunctive relief redress the injuries of the past and prevent further injury in the future. Because all standing requirements of Article III of the U.S. Constitution have been met, as laid out in Spokeo, Inc. v. Robins, 578 U.S. ___ (2016), Plaintiff has standing to sue Defendants on the stated claims.
“…[C]ourts in the Ninth Circuit have held that “allegations of nuisance and invasions of privacy in TCPA actions are concrete” injuries that establish standing. See Mbazomo v. ETourandtravel, Inc., 16-CV-2229-SB, 2016 U.S. Dist. LEXIS 170186, 2016 WL 7165693, at *2 (E.D. Cal. Dec. 8, 2016); Cabiness v. Educ. Fin. Sols., LLC, 16-CV-1109-JST, 2016 U.S. Dist. LEXIS 142005, 2016 WL 5791411, at *5 (N.D. Cal. Sept. 1, 2016); Juarez v. Citibank, N.A., No. 16-CV-1984-WHO, 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3 (N.D. Cal. Sept. 1, 2016); Hewlett v. Consolidated World Travel, Inc., 16-713 WBS AC, 2016 U.S. Dist. LEXIS 112553, 2016 WL 4466536, at *2 (E.D. Cal. Aug. 23, 2016); Cour v. Life360, Inc., 16-CV-00805-TEH, 2016 U.S. Dist. LEXIS 98945, 2016 WL 4039279, at *2 (N.D. Cal. July 28, 2016); Booth v. Appstack, Inc., No. 13-1553JLR, 2016 U.S. Dist. LEXIS 68886, 2016 WL 3030256, at *7 (W.D. Wash. May 25, 2016). In Mbazamo, the court held that a violation of the TCPA represents a concrete injury because “[t]he history of sustaining claims against both unwelcome intrusion into a plaintiff’s seclusion and unceasing debt-collector harassment are squarely ‘harm[s] that [have] traditionally been regarded as providing a basis for a lawsuit.'” Mbazomo, 2016 U.S. Dist. LEXIS 170186, 2016 WL 7165693, at *2 (quoting Spokeo, 136 S.Ct. at 1549-50). The court declined to follow Romero, explaining that Romero “improperly erodes the pleading standard set under Fed. R. Civ. P. 8(a) . . . . A plaintiff [need only] plausibly tie the alleged acts of the defendant to the alleged harms suffered.” Id.
Similarly, in Cabiness, the court held that a violation of the TCPA represents a concrete injury because “[e]every unconsented call through the use of an ATDS to a consumer’s cellular phone results in actual harm: the recipient wastes her time and incurs charges for the call if she answers the phone, and her cell phone’s battery is depleted even if she does not answer the phone . . . . unsolicited calls also cause intangible harm by annoying the consumer.” Cabiness, 2016 U.S. Dist. LEXIS 142005, 2016 WL 5791411, at *5 (internal citations omitted). And in Juarez, the court held that the plaintiff’s allegation “that he received repeated unwanted calls that caused him aggravation, nuisance, and an invasion of privacy, is sufficient to allege a ‘concrete’ and ‘particularized’ injury that establishes standing under Spokeo.” Juarez, 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3.
Messerlian v. Rentokil N. Am., Inc. (C.D.Cal. Dec. 15, 2016, No. CV 16-6941-GW (GJSx)) 2016 U.S.Dist.LEXIS 175224, at *7-8.
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo. at 1548 (quoting Lujan, 504 U.S. at 560). The Supreme Court noted that concreteness is quite distinct from particularization. Id. An injury is “particularized” if it affects “the plaintiff in a personal and individual way.” Id. In addition, for an injury to be “concrete”, it must be “de facto,” meaning that it is “real” and not “abstract.” Id. However, an injury need not be “tangible” in order to be “concrete,” and intangible injuries may constitute injury in fact. Id. at 1549. In order to determine whether an intangible harm constitutes injury in fact, Spokeo provided two factors to be considered: “history and the judgment of Congress.” Id. at 1549. Specifically, “(1) whether the statutory violation bears a ‘close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts,’ and (2) congressional judgment in establishing the statutory right, including whether the statutory right is substantive or procedural.” Matera v. Google, No. 15cv 4062-LHK, 2016 WL 5339806, at *9 (N.D. Cal. Sept. 23, 2016). Spokeo also held that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact.” Spokeo, 136 S. Ct. at 1549. In such a case, a plaintiff “need not allege any additional harm beyond the one [the legislature] has identified.” Id.
Importantly, “prior express consent is an affirmative defense, not an element of the claim,” meaning a plaintiff “need not plead that he did not give his prior express consent.” Manfred v. Bennett Law, PLLC, No. 12–CV–61548, 2012 WL 6102071, at *2 (S.D. Fla. Dec. 7, 2012). Rather, “[t]he only thing [a] [p]laintiff must plead to establish a violation of the TCPA is that the [d]efendants left voicemail messages at a number assigned to a cellular telephone service using an automatic dialing system or an artificial or pre-recorded voice.” Id. (denying motion to dismiss for failure to state a claim where the plaintiff alleged “that [the] [d]efendants used an Automatic Telephone Dialing System or an artificial or pre-recorded voice to place the telephone calls to [the] [p]laintiff’s cellular phone.”).
The FCC regulations also “generally establish that the party on whose behalf a solicitation is made bears ultimate responsibility for any violations.” In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 92-90, Memorandum and Order, 10 F.C.C. Rcd. 12391, 12397 ¶ 13 (1995). 13. The FCC confirmed this principle in 2013, when it explained that “a seller …. may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers.” See In the Matter of the Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574, 6574 (2013).Domain White Pages
47 C.F.R. 64.1200(c)(2) prohibits calling any number on the national Do-Not-Call Registry. 47 C.F.R. 64.1200(a)(1)(iii) states that no person or entity may initiate any commercial purpose telephone call to any cellular telephone that is already on the national Do-Not-Call Registry.