Jiminez v. Credit One Bank, N.A.
- Laura Swain
- 1:17-cv-02844
- U.S. District Court · Southern District of New York
- 4
In Jiminez v. Credit One Bank, Judge Swain directed a $190,000 TCPA judgment for 380 automated calls to Jiminez’s cellphone.
Alejandro Jiminez received a $190,000 statutory-damages judgment against Credit One Bank, N.A., NCO Financial Systems, Inc., and Alorica, Inc., jointly and severally, for 380 automated calls to his cellphone.
What happened
In Alejandro Jiminez v. Credit One Bank, N.A., NCO Financial Systems, Inc., and Alorica, Inc., Jiminez sued under the Telephone Consumer Protection Act over calls made to his cellphone. The court had already found that the calls violated the law and asked the defendants to explain why judgment should not be entered.
The defendants argued that 43 calls should not count because they allegedly did not reach a working number. The court rejected that argument, explaining that making the call—not whether someone received it—triggers the law’s $500-per-call damages, and that the records did not show the number was disconnected during the relevant period.
Judge Laura Taylor Swain directed the Clerk of Court to enter judgment for Jiminez for $190,000, calculated as $500 for each of 380 calls, against the defendants jointly and severally.
The detailed version
- Jiminez v. Credit One Bank, N.A. · No. 1:17-cv-02844
- Laura Swain
- Nov. 22, 2019
Background
Alejandro Jiminez brought claims under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, against Credit One Bank, N.A., NCO Financial Systems, Inc., and Alorica, Inc. The opinion states that NCO became EGS in 2015 and that EGS was acquired by Alorica on June 30, 2016.
In a March 28, 2019 opinion, the court granted Jiminez’s motion for summary judgment on TCPA liability and directed the parties to identify any disputed facts relevant to damages. In a September 25, 2019 order, the court denied the defendants’ motion to modify or clarify the March opinion. The court reaffirmed findings that EGS placed 380 calls to the telephone number ending in 7929 between January 2017 and March 27, 2017; that Jiminez held a cellphone account connected to that number; that Jiminez had never had a relationship with Credit One; and that all the calls used an automatic telephone dialing system covered by the TCPA. The September order found no remaining disputed facts relevant to liability and indicated that the court intended to award $190,000, calculated at $500 for each call.
Issue
The remaining issue was whether the 380 calls should all be counted when calculating statutory damages. The defendants argued that the award should be reduced by 43 calls that allegedly did not reach a working telephone number because Jiminez sometimes failed to make payments and his phone may have been disconnected.
Analysis
The TCPA makes it unlawful to call a cellular telephone number using an automatic telephone dialing system without the called party’s prior express consent. The court explained that the making of the call, rather than its receipt, is the event that supports statutory damages under the TCPA.
The court also rejected the defendants’ factual premise. Call logs inconsistently labeled calls on four different days as either “No Answer” or “Invalid Phone Number.” Those records did not establish that Jiminez’s cellphone was disconnected on any identifiable days, and none showed that the number was not assigned to him during the relevant period.
Disposition
The court directed the Clerk of Court to enter judgment in favor of Jiminez for $190,000 against the defendants jointly and severally. The amount represents $500 for each of the 380 calls. This order did not reduce the number of calls used to calculate damages.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.