For Kimberly Salerno, 465 robocalls from a bank over six months was just too many.
So the Wyoming County woman filed a lawsuit under the federal Telephone Consumer Protection Act.
A Buffalo judge awarded Salerno $232,500 on Tuesday after a court-appointed arbitrator, a panel of arbitrators and a federal magistrate judge had all agreed with her.
Credit One, a Nevada-based bank that issued credit cards to Salerno and her boyfriend and was trying to collect debts from them, was ordered by District Judge John L. Sinatra Jr. to pay her damages instead.
“That’s $500 for each robocall that was made to Kim Salerno without her consent,” Salerno’s attorney, Kenneth R. Hiller, told The Buffalo News. “Those are the damages that the law provides for. The law is designed to protect consumers from unwanted and unauthorized robocalls.”
The award to Salerno is one of the largest of its kind ever made in Western New York since the telephone consumer protection law was enacted in 1991, said Hiller, a consumer attorney for 36 years who specializes in legal actions against debt collectors.
The legal battle over the robocalls has stretched out for more than five years – and could go on longer if the bank appeals Sinatra’s decision.
According to court papers, Salerno, who lives in Arcade, received 465 robocalls from Credit One representatives between early December 2014 and late May 2015.
Attorneys for Credit One denied any wrongdoing throughout the litigation, saying the bank had no control over the number of robocalls that were made because it hired an outside company to make calls to people who fell behind on credit card payments.
Salerno gave the bank permission to make robocalls to her cellphone, and she suffered “no actual damages” as a result of the calls, the bank’s attorneys argued.
“We argued that she never gave permission, and that the bank is responsible for the robocalls made by the outside contractor that it hires,” Hiller said. “All the arbitrators and the judges who reviewed this case agreed with us.”
“The law does not prohibit calls made by a live caller. The law is directed toward robocalls,” Hiller said. “A person or corporation cannot make robocalls to someone without that person’s consent.”
Based on the numbers cited in court papers, Salerno – on average – received an average of two to three robocalls a day about credit card debts that she and her boyfriend owed to Credit One. Hiller said his client was “annoyed and abused” by the frequent calls, especially because her cellphone contract only allowed her a certain number of call minutes per month.
During the time of the robocalls, Salerno’s credit card bill never exceeded $657, according to court papers, and her boyfriend’s credit card debt “was not much higher than hers,” Hiller said on Wednesday.
Representatives of Credit One admitted during the litigation “that it will continue to call a customer until the customer tells them to stop, and will always assume that the customer wants to continue receiving calls until they explicitly say stop,” Hiller said in court papers. “If Credit One were to call a customer 50,000 times with no answer, they would presume the customer wants to receive the 50,001st call unless the customer had said stop.”
The bank did not respond Wednesday to The News' phone call seeking its comment.
After the lawsuit was filed in June 2015, it was assigned to an arbitrator, James C. Moore, who ruled in Salerno’s favor in early 2018. A panel of three more arbitrators also ruled in Salerno’s favor later in 2018. Earlier this year, U.S. Magistrate Judge Leslie G. Foschio refused to overturn the arbitration ruling, and this week, Sinatra adopted Foschio’s ruling.
In a July 6 ruling, the U.S. Supreme Court upheld the constitutionality of the Telephone Consumer Protection Act, but three days later it agreed to review what type of dialing equipment qualifies as an “automatic telephone dialing system” regulated by the law.
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