Treble Trouble in Paradise: Court Refuses to Treble Jury’s $8,500 TCPA Award to Plaintiff

On April 4, the U.S. District Court for the Northern District of Texas declined to increase or treble the plaintiff’s $8,500 jury trial damages awarded under the Telephone Consumer Protection Act (TCPA) after failing to find that the defendant acted willfully or knowingly under TCPA § 227(c)(5)(B). Indeed, the judge cut the award to $6,500. Since the TCPA does not have a fee-shifting remedy, that $6,500 win for the plaintiff is the total outcome of this federal court jury trial.

In Noviello v. Adam Wines Consulting, LLC, the plaintiff brought claims against the defendant for alleged violations of the TCPA related to telemarketing calls and texts sent to his personal cell phone for the purpose of providing business financing. At trial, the plaintiff offered evidence of 10 text messages and three voicemails from the defendant despite the plaintiff’s registration on the federal Do Not Call (DNC) registry. The plaintiff also provided evidence that four of these text messages followed the plaintiff’s cease and desist demand. The jury awarded the plaintiff the maximum statutory penalty of $500 per violation for each of the 13 calls under the plaintiff’s federal DNC claim (for a verdict of $6,500). The jury also found the defendant liable for sending the four texts after the cease and desist demand, awarding the $500 maximum penalty for each of those texts as well (for a verdict of $2,000 or a total of $8,500). In sum, the jury awarded the maximum amount it could, short of a willfulness finding.

After trial, the plaintiff petitioned the district court to: (1) enter judgment separately for the jury’s awards under the federal DNC registry claim and the internal DNC list claim because those claims were separate counts, granting the plaintiff the maximum verdict of $8,500; and (2) treble the plaintiff’s damages because the evidence showed the defendant exhibited a reckless disregard for its compliance with the TCPA.

The court declined both requests and instead entered judgment for the plaintiff on the jury’s verdict for only $6,500, cutting the award by $2,000.

On the issue of the plaintiff’s overall award, the court found that § 227(c)(5) does not allow for an award of statutory damages for each violation during a call, but instead limits statutory damages to one award per call, limiting the plaintiff’s overall award to $500 on each of the 13 calls, regardless of the separate counts. This resulted in the $2,000 cut to the jury award.

On the issue of treble damages, the court declined to find that the defendant willfully or knowingly violated the TCPA. Turning to the evidence presented at trial, the court found that there was not enough evidence to establish that the person who informed the plaintiff that the defendant would cease future calls was the same person who then texted the plaintiff again following the cease and desist communication. Without more evidence tying these text messages to the same individual, the court found that the plaintiff’s arguments for general and specific deterrence did not support the finding of treble damages and declined to increase the jury’s award.