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Federal Deception Law: 12.6.4.4 Remedies Under State Anti-Spam Laws

Most state anti-spam laws give recipients of spam a private cause of action, often including statutory damages, such as $10 per message or a flat award of $500.183 Many of these state statutes also allow a prevailing plaintiff to recover costs and attorney fees. While the damage amounts are small, they could be very significant in a class action. Even in an individual action, many people will have received so many email messages that the cumulative statutory damages could be significant.

Federal Deception Law: 12.6.5.1 UDAP Claims

There should be no room for dispute that general UDAP prohibitions apply to online fraud. However, some states are amending their UDAP statutes to make it clear that advertising, offers, and publications that are transmitted electronically or over the internet fall within the statute.198 The CAN-SPAM Act does not preempt state laws of general application that could be used to attack spammers, such as UDAP claims.199

Federal Deception Law: 12.6.5.2 Common Law Tort Claims

ISPs have successfully asserted against spammers the ancient common law claim of trespass to chattels—the use of a chattel without or exceeding the consent of the owner and impairing the use, value, or condition of the chattel.200 These cases have held that a spammer who temporarily intrudes on a computer electronically to harvest email addresses, or temporarily takes up a part of the computer’s capacity with spam messages, sufficiently impairs the chattel to support the cause of action.

Federal Deception Law: 12.6.5.3 State Telemarketing and Door-to-Door Statutes

Whether state telephone sales laws apply to online sales will depend on their language. Georgia’s telemarketing law explicitly applies to theft offenses committed while “engaged in any activity involving or using a computer or computer network.”204 Virginia’s home solicitation sales law covers sales conducted by telephone “or other electronic means.”205

Federal Deception Law: 12.6.7 Consumer’s Consent As a Defense

Defendants may argue that they used an “opt-in list” of email addresses of persons who gave prior consent and that this is a defense to liability. Any specific evidence of such consent should be explored during discovery. An alleged “opt-in” list may have been assembled by a third party having no actual evidence of such claimed consent. Furthermore, any actual “opt-in” may have taken place on a webpage entirely unrelated to the emails at issue.

Federal Deception Law: 6.1 Scope of This Chapter

This chapter analyzes substantive regulation of unwanted telephone calls, text messages, and junk faxes. It focuses primarily on the Telephone Consumer Protection Act (TCPA), which the Federal Communications Commission (FCC) administers. However, it also discusses the provisions of the FTC’s Telemarketing Sales Rule (TSR)—adopted under the Telemarketing and Consumer Fraud and Abuse Prevention Act (TCFAPA)—that overlap with the TCPA.

Fair Debt Collection: 14.3.2.1 Potential Applications to Debt Collection

The Telephone Consumer Protection Act of 1991 (TCPA)37 amended the Federal Communications Act of 1934. It added a section to protect consumers from invasions of privacy such as automated and prerecorded telephone calls, junk faxes, and telemarketing calls.38 Since the TCPA has attractive remedies,39 it can be of significant benefit to debtors to the extent it applies to debt collection.

Fair Debt Collection: 14.3.2.2 Scope of the Prohibition on Autodialed or Prerecorded Calls to Cell Phones

As noted above, the TCPA prohibits the use of any automatic telephone dialing system or artificial or prerecorded voice message in a call to a cell phone, pager, or the like, or when the called party is charged for the call, unless the called party has given prior express consent to be called.54 The phrases “cellular telephone service” and “any service for which the called party is charged for the call” are alternative; it is not necessary that the cellular consumer be charged for the call.

Consumer Bankruptcy Law and Practice: 12.3.4.4.2.2 Child support, foster care, and similar payments

The definition of disposable income excludes child support payments, foster care payments, or disability payments received for a dependent child to the extent reasonably necessary to be expended for the child.155 If courts exclude these payments, which may well go to expenses for the debtor’s dependents, the debtor’s income will be reduced.156 But courts might exclude expenses for the child to the extent they are covered by these payments.

Consumer Bankruptcy Law and Practice: 12.3.4.4.3 Use of means test expense calculations for debtors with incomes above median income

Perhaps the most dramatic change in the disposable income test in 2005 was the use of the section 707(b) means test expense calculations for some debtors. Section 1325(b)(3) provides that for debtors whose current monthly income is above the state median income for the applicable family size, reasonably necessary expenses are to be calculated using the means test formula found in section 707(b)(2)(A) and (B) in order to determine payments to unsecured creditors.

Consumer Bankruptcy Law and Practice: 12.3.4.4.4 Administrative expenses

As a result of poor drafting, it is not crystal clear how administrative expenses are to be paid in a chapter 13 case. There has been some concern that the provisions incorporated from section 707(b) would limit the debtor’s administrative expenses to the ten percent cap found in those provisions.188 Such a limit would render almost every chapter 13 case impossible, because the expenses necessary to administer the case almost always exceed ten percent.

Consumer Bankruptcy Law and Practice: 12.3.4.4.5 Calculation of expenses for debtors below median income

Because of poor drafting it is not totally clear how secured creditors are to be paid by debtors whose incomes fall below state median income. Section 1325(b)(1)(B) uses language that was found in the subsection prior to the 2005 amendments to describe how much is to be paid into the plan for all creditors, but now states that this amount is to be paid to “unsecured creditors.” This phrasing created a possible interpretation that debtors below median income cannot pay any money to secured creditors.

Consumer Bankruptcy Law and Practice: 11.4.2.8 Practice Tips

Many car lenders understand that economically they are far better off if the debtor continues to make payments, even without reaffirmation, than they are if they repossess the debtor’s vehicle, which is often worth far less than the amount of those payments. If they cannot scare the debtor into reaffirming, they simply accept the continued payments. Often, a creditor will let this policy be known.