Anton Ewing is making a ton of noise in TCPAWorld right now.

Fresh off a huge $78k default judgment win last week, Ewing is back again to start this week with a smaller–but still significant– $31k+ victory in a suit involving just 6 phone calls.

In Ewing v. Salazar, et al. 3:23-cv-02286 (Doc. 15)(S.D. Cal. Aug. 23, 2024) the court entered default judgment against defendants Jacqueline Salazar and something called DreamStay Solutions for over $31k on just five phone calls and one text message.

Apparently Salazar told Ewing in a later phone call that she had sent the messages to drum up real estate listing business and that she recorded all calls. That’s all Ewing needed to sue Salazar personally for the calls–along with the business.

Since neither Salazar nor DreamStay showed up to defend themselves the court had no problem crediting Ewing’s allegations as true. It also swiftly entered judgment in the amount of $1000 per call/text ($500 for 227(b) violation and $500 for 227(c) violation) and another $5,000.00 for each of the five calls that were recorded (the text message did not trigger that penalty) for a total of $25k. All together its $31k plus costs of suit!

Eesh.

What Ewing is doing right now is really quite special–and dangerous. He is leveraging the extremely dangerous California Invasion of Privacy Act (CIPA) to turn $500.00 per call damages into $5k or even $6k per call damages. And that is something that should make every caller take immediate notice.

The issue is recording calls without consent. We see this most often in the context of live answered calls, but two courts now–admittedly in the context of a default judgment, but still– have found recording interactions even on pre-recorded calls is sufficient to trigger the two-party consent requirements of the statute.

And remember–CIPA has a $5k penalty per violation!

Couple of key take aways here:

1. Don’t call Anton Ewing–use a litigator scrub or some other tool to make sure you don’t call this guy;
2. NEVER cold call cell phones using prerecorded calls. Ridiculously illegal–even in the B2B context;
3. If you are sued, defend yourself! Get counsel. Respond to the complaint. Fight and win if you can!;
4. You can be sued PERSONALLY if you admit to being involved in illegal calls, even if you made the calls for an employer, as part of a business or have an LLC. These things do not protect you in TCPAWorld!;
5. Recording calls without consent–even answered prerecorded calls or AI calls–is a violation of the CIPA and can cost you big. Even if you have express written consent to use AI or prerecorded calls that does NOT protect you from CIPA claims.

This last takeaway is particularly critical in connection with the FCC’s proposed new AI disclosure rules. How does one prove compliance with the disclosure without recording? And how does one record without consent? One does not.