Clark v. Convergys
Case Number 00-SC-283

This case is by far my most involved, but the most satisfying. I could do a website on this case alone, so we'll break it into chapters.

The case so far:

  • The Calls
  • The Sleaze
  • The E-Mail
  • The Television Appearance (almost)
  • The Affidavit
  • The Motions
  • The Arguments in Court (fist time around)
  • The Interrogatories/Request to Admit
  • Going Through the Motions
  • The Obscenity
  • The Settlement

  • The Calls

    In January of 1999, I received a call from Convergys, who was representing their client, Ameritech. I told them to place me on the Do Not Call (DNC) list for both Ameritech and Convergys. Since you are a clever reader and can use your powers of deduction, you probably noticed that I've got a lawsuit going, and will therefore deduce that they called again.

    If so, you are correct, and more intelligent than they are.

    In July of 1999, Convergys called again, this time representing MCI WorldCom. I again asked to be put on the DNC list for both MCI and Convergys. I then hung up the phone and proceded to hunt down the legal department at Convergys using the techniques outlined in my section on how I enforced my rights.

    The Sleaze

    It is here that Convergys distinguishes itself from other sleazy vermin by sinking below and beyond the call of sewage. Even a sniping weasel rectum, if you'll pardon the vernacular, would be embarassed by their tactics. Their lawyer said that there are "penalties associated with filling [sic] lawsuits as a means of extorting money from the named defendant." Is this a threat to sue me for extortion if I file the lawsuit? I'm no lawyer, and I'm certainly not as smart as him, so I misread the threat as a dare. Apparently he didn't read my section on Discover, where I mentioned that when corporations dare me to file lawsuits, I can't resist. Ah, if only he would have been a little more clear.

    Not only did he threaten me, it turns out he lied to me about his company. He claimed that his company did not have an office in Illinois, and therefore no Agent for Service of Process. The Agent for Service of Process is important because that is where lawsuits against a corporation must be received, and any company doing business in a state must have an Agent for Service of Process in that state. No Agent for Service of process--no lawsuit. Booher claimed that they had neither an office, nor an Agent in Illinois, but was gracious enough to invite me to serve the lawsuit to him in Ohio, which probably would not have been possible, or would have meant that the trial would have taken place in Ohio, not in Illinois, where I live.

    A little basic detective work (I called Convergys and asked to talk to someone in their Illinois office--imagine my surprise at being connected to a mythical land which did not exist!), revealed that Convergys has an office in Itasca, Illinois, and as the person I talked to on the phone said with a certain heartfelt pride, "You can't miss it--it's the biggest building in town!"

    The E-Mail

    I originally contacted their Attorney via phone. He was all buddy-buddy until I let him know that I would be pressing on for the fines. Then he told me I didn't understand the law.

    I told him HE didn't understand the law--had he looked at it lately?

    Well, no, he said he hadn't. So, being the helpful friendly guy I am, I offered to send him a copy of the statute via email, and invited him to explain it to me in terms I could understand...He could show me the err of my ways.

    He accepted, and surprisingly, I didn't hear back from him, even a week later. I emailed him to remind him that I was waiting, and he told me he needed more time.

    Jeez. I read the statute in a few minutes. I guess you have to be kind of dumb to work for Convergys.

    Anyway, after a month, I still hadn't heard from him, and so I sent him another friendly reminder. This is what I got back (with my editorial comments on the right):
    X-Lotus-FromDomain: CVG
    To: Brian Clark
    Date: Tue, 3 Aug 1999 09:52:20 -0400
    Subject: Re: Telemarketing Incidents
    Mime-Version: 1.0
    As promised, I double-checked our records with respect to telephone number 217-
    [removed for obvious reasons]. Our records indicate the following:

    1. On May 25, this telephone number was placed on Convergys' Do Not Call list for Ameritech, Ameritech Winback, Ameritech PPC, and Ameritech EBS Winback. Nice. He didn't even get the date right. It was January 21, buddy.
    2. On July 1, this telephone number was placed on Convergys' Do Not Call list for MCI Worldcom.  
    3. On July 9, this telephone number was placed on Convergys' Do Not Call list for all Convergys' clients. Yes. After I asked to be put on the DNC list on TWO separate occasions with no effect, I contact Booher, who finally figures out I mean business, and I finally make the coveted DNC list!
    ...and there was much rejoicing.
    This issue here is whether in January, you specifically asked to be placed on Convergys' do not call list, as opposed to telling the operator who was calling you about Ameritech that you wanted to be placed on the do not call list. According to our records, you asked the latter. We then placed you on Ameritech's do not call list. Likewise, when our operator called you on behalf of MCI in June, and you asked to be placed on the do not call list, we placed you on MCI's do not call list. After our July 2 or 3 telephone call, wherein I determined that your true intent was to be placed on Convergys' client-wide do not call list, I had you placed on Convergys' client-wide do not call list. Well, for once he got something right. The issue here IS whether I specifically asked to be placed on the Convergys DNC list.
    Happily, I did!
    Brian, we provide services for several hundred client companies and provide a transparent interface with the customer. When a person generically asks that they be placed on a do not call list, we place their telephone number on the do not call list for the client on whose behalf we are making the call. Alternatively, when someone asks to be placed on Convergys', or a particular Convergys' business unit's, do not call list, that person's telephone number is placed on the requested Convergys' or the Convergys' business unit's client-wide do not call list. Did you see that?! He used my NAME there. This means that he is definitely sincere, AND paying attention. Too bad their operators don't pay attention when you ask to be put on BOTH DNC lists.
    Regarding your comments about the affirmative defense portion of the do not call statutes and regulations, you are correct that it is an affirmative defense for Convergys that it has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the do not call statutes and regulations. An affirmative defense is a defense that when raised and demonstrated, precludes the other side from recovery. I believe you will discover that courts regularly uphold the validity of the above affirmative defense. Accordingly, I disagree with your statement that this affirmative defense is open to interpretation.  
    Here, Convergys has implemented, and regularly updates, its do not call policy, attached, and takes seriously its duties with respect to such policy and all applicable telecommunications statutes and regulations. The fact that I could provide you with the above information, should demonstrate such to you. Here, our established policy and methodology demonstrates that we have established and implemented, with due care, reasonable practices and procedures designed to prevent calls to persons who have previously requested that their telephone number be placed on a specified do not call list. Therefore, under the applicable statutes and regulations, we are provided with an affirmative defense. We have also complied with your requests to be placed on the various do not call lists that you have requested. Wow. Well, there you have it folks. He said that they have some sort of policy, and the fact that he can provide me with that excuse should be good enough for me. I mean, he wouldn't LIE, would he? He's a lawyer.... and besides, he said that Convergys takes seriously its duties with respect to such policy.
    Well, I'M convinced... how about you?
    Therefore, we do not feel that we are liable to you for the amount you requested.

    p.s. Since writing this email (I mistakenly pushed "drafts" instead of hitting "send"), I received your 7/31/99 email. Convergys has 33,000 employees who receive and make over 1,000,000 telephone calls per day, with revenues approximating $1.5 billion. Regardless of your conviction otherwise, we rarely receive a complaint such as yours and, to my knowledge, a court has never ordered us to pay any amount for violating the do not call statutes and regulations. In addition, we do not settle "out of court" whenever someone claims we have violated the do not call statutes and regulations. (If we determined we were in the wrong, we would, of course, provide the statutory compensation.) We take our obligations under the law very seriously and make every reasonable effort to comply with the law.

    Regarding your comments about the costs of litigation etc., we understand those cost, but we also understand that there are certain people who attempt to use the telemarketing statutes and regulations to make money. That is why we have to take a firm stance when we do not feel that we are in the wrong. Here, the discovery that would take place before trial would include depositions and paper discovery, such that Convergys could properly defend itself. You need to understand that the process could, and probably will, also cost you money. You also need to understand that you do not have an open and shut case. HEY! What is he insinuating by "certain people who attempt to use the telemarketing statutes and regulations to make money"? I take offense at this statement. If I were such a lowlife I would have gone to law school.
    Or started a telemarketing firm.
    Then I could work for Convergys and use the telemarketing statutes to make money--maybe even $1.5 BILLION a year like my friends at Convergys.
    I would encourage you to contact an attorney to get an objective evaluation of this case. Such attorney can also explain to you the penalties associated with filling lawsuits as a means of extorting money from the named defendant. Finally, should you wish to pursue this matter in court, I would be happy to accept service of process on behalf of Convergys, which should make the process more convenient for you with respect to obtaining service of process. However, I do reserve the right to contest jurisdiction and venue, as appropriate. Extortion is a harsh word, even from a life form as low as a telemarketer.
    Perhaps that is why it came from a telemarketing lawyer. Ah, Marky Mark... You have no idea how disappointed I am that you and your Funky Bunch have sunk to the level of vague threats.
    I thought I was dealing with a class act.

    The Television Appearance (...almost)

    Well, I filed the suit against Convergys, and an unexpected development brought tears to my eyes. They are tears of laughter, thankfully.

    Read on, dear reader, for what follows is the body of the letter that I received from -- yes, believe it or not, JUDGE JUDY!!

    Dear Brian,

    I am a producer for the nationally syndicated, top rated court television program, "Judge Judy." On "Judge Judy, small claims cases from all over the nation are arbitrated, and the decisions rendered are final and legally binding. Our field researchers have selected and brought to my attention the small claims case that you have filed in the Urbana small claims court against Convergys Customer Management.

    The arbitrator on "Judge Judy" is Judity Sheindlin, retired Supervising Judge of the New York City Family Court, where she served for 15 years. She is a renowned jurist and author of two books. Her distinguished career has been profiled on a number of television programs, including "60 Minutes."

    As you probably know, even if you win your case in the small claims court, the court cannot guarantee that you will collect your money in a timely fashion, if ever. If, however, you choose to arbitrate your case on "Judge Judy" and win, we guarantee that you will receive the money awarded to you by the arbitrator within thirty days, plus court costs. In addition, if you choose to arbitrate your case on "Judge Judy," we will grarantee you an appearance fee for appearing on the program, and we will pay the travel expenses for you and any necessary witnesses to travel to Los Angeles.

    Naturally, there is no way that Convergys would agree to join me on "Judge Judy," since they want to bury this whole thing, but I could sure use a free trip to LA and the appearance fees.

    But most of all, I wish I could see the look on the face of Mark Booher, the "lawyer" representing Convergys (I put the word "lawyer" in quotes becuase I'm not entirely sure he should be practicing law). Since this guy dared me to file a suit and suggested that he would sue me for extortion, I have already laughed myself silly (ok, sillier) picturing the look on his face as "Judge Judy" invites him to be on the show. Oh well. I guess I will just have to settle for suing them here in my home town.

    The Affidavit

    Here is a copy of the affidavit I filed, which is essentially sworn testimony.


    BRIAN CLARK deposes and states upon oath as follows:

    1. I, Brian Clark, the Plaintiff have personal knowledge of the facts stated herein, and I am competent to testify thereto.

    2. I keep a notebook on my desk, and whenever a telemarketer calls, I take contemporaneous notes. Attached to this document are true and correct copies of the relevant portions of my notes from phone conversations with agents or employees of the Defendant, Convergys Customer Management Group, Inc. ("Convergys").

    3. On January 21, 1999 at approximately 8:50, Jeremy Oxburrough (spelling unconfirmed) called as a representative of Ameritech. I asked Mr. Oxburrough if he actually worked for Ameritech, or if he worked for a telemarketing firm. Oxburrough admitted that he worked for Convergys, who was hired by Ameritech. I told Mr. Oxburrough that I wished to be placed on the Do Not Call List for both Convergys and Ameritech. I was clear in my desire to be placed on both lists, and I emphasized the word "both", and so reflected this in my notes by writing this part in all-caps.

    4. On July 1, 1999 at 2:50, Rachel Hale (spelling unconfirmed) called on behalf of MCI Worldcom. I also asked Ms. Hale if she worked for MCI, or if she worked for a telemarketing firm. She said that she worked for Convergys. I asked to be put on the Do Not Call List for both Convergys and MCI, despite the fact that I had already asked on the previous call. I was again clear in my desire to be placed on both lists.

    5. Because the above events constitute a violation of the Telephone Consumer Protection Act of 1991, I attempted to contact Convergys to collect the $500 statutory penalty, and I eventually was placed in contact with a person who identified himself as Mark Booher, and who led me to believe that he was an attorney employed by the Defendant. Booher offered to ensure that I would never be called again by Convergys.

    6. When I persisted in demanding that Convergys pay me the $500 statutory damage, Mr. Booher told me that I did not understand the law, and offered to explain it to me via e-mail. We exchanged e-mail addresses, and then Mr. Booher said he would look into the incident and get back to me.

    7. After about a week, I had not heard from Mr. Booher. I e-mailed him to remind him that I was waiting. His reply came that he needed more time to investigate the situation.

    8. Approximately a month after my initial contact with Booher, I still hadn't heard from him, so I sent e-mail again, and got a response, a true and correct copy of which is attached. In this response, Mr. Booher told me that my name was initially placed on a Do-Not-Call list for Ameritech and MCI, but not on the Convergys Company-wide list, despite my request to be put on such a list each time. He put me on the Company-wide list only after talking to me himself and my insisting that I be paid the $500 statutory damage. Booher also told me that there are (in his words:) "penalties associated with filling [sic] lawsuits as a means of extorting money from the named defendant." I perceived this as a threat intended to scare me away.

    9. When I asked him for the proper name of the corporation to name as the Defendant in this lawsuit, Mr. Booher declined to tell me. I asked for the name and address of Defendant's Agent for Service of Process in the State of Illinois. Booher stated that there was no Agent for Service of Process in Illinois, as there were no offices in Illinois. He invited me to mail the complaint to his office in Ohio, instead of serving an Agent in Illinois.

    10. Defendant maintains a site on the World Wide Web, which indicates that Defendant has an office in the city of Itasca, Illinois. I also called Convergys, posing as a potential client, and asked if I could visit an office in Illinois. When I asked how I could find the office, the phone representative said "You can't miss it. It's the biggest building in town." The present lawsuit was served upon Defendant's registered Agent for Service of Process in Chicago.

    11. Before filing the lawsuit, but after discovering Booher's misrepresentation of the truth, I called Mr. Booher one final time to see if he would cooperate. I asked him if I could record the call so we could have an accurate record, and he declined. I did not record the call, but I did ask him again about the agent for service of process, and his story did not change. I sent via registered mail a copy of the letter which is attached, asking whether I had misunderstood his claims, and asking him to respond if anything in the letter was incorrect. I never heard from him again, though I did get the proof that the registered mail was delivered (also attached).

    12. Though not specifically listed in the original complaint, Convergys did place a call to me sometime during the period between the January 1999 phone call and the July 1999 phone call. This call, unlike the others I had received, showed up on my Caller ID as coming from Convergys. The others that I received from Convergys were all listed as "NO CID INFO." Since I was not home to answer the call, I did not pursue it as an offending call, nor did I record it in my log because I did not actually talk to someone, but I did learn the correct spelling of "Convergys," without which I might not have found how to get in touch with the corporation.

    13. I would like to state that in my dealings with telemarketers, among observations I have made, I have noticed the following things: Telemarketers never offer to give the name of their telemarketing company unless I specifically ask who they work for. They represent themselves as working for whatever client has hired the telemarketing firm. They usually hesitate and try to find a way to avoid the question of their direct employer. I usually have to follow up with a question like, "Who do you work for DIRECTLY?" or "What company gives you your paycheck?" in order to find out who the telemarketer is. I believe that the telemarketers know they aren't supposed to lie, but I also believe that they are encouraged do divulge as little information as possible.

    Further affiant sayeth not.

    The Motions

    I filed a motion to strike their motion to dismiss the case. The Judge didn't strike their motion, but she did find in favor of my Response, which stated that the case should in fact be heard:


    BRIAN CLARK, PLAINTIFF respectfully submits this motion to strike the Defendant's "Motion to Dismiss" on the grounds that the motion is actually a Motion for Summary Judgment, and is not allowed in Small Claims Court. In the alternative, Plaintiff responds to and disputes Defendant's claim of Affirmative Defense.

    I. Background

    On January 21, 2000, Plaintiff filed a verified one-count complaint alleging that the Defendant ("Convergys") violated the Telephone Consumer Protection Act of 1991. Defendant has filed a motion for Summary Judgment under the title of "Motion to Dismiss" in an effort to fit it under the category of paragraph 2-619.

    II. Argument

    a.) The Defendant's "Motion to Dismiss" is actually a Motion for Summary Judgment, in violation of Supreme Court Rule 287(b).

    Defendant Convergys Customer Management Group, Inc. ("Convergys") has filed an article for Case No. 00-SC-283, entitled "Defendant's Motion to Dismiss." This article purports to have been filed pursuant to paragraph 2-619, but doesn't fit under this category. The article is actually a motion for Summary Judgment, but Plaintiff chose to file it under 2-619 because Small Claims Court does not allow filings for Summary Judgment. Defendant presumably is trying to fit under sub-paragraph 9 of 2-619, which says that a defendant may file for dismissal based upon the fact that "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim."

    However,2-619 states that Plaintiff's claim must be barred by other affirmative matter. Defendant does not argue that Plaintiff's claim is barred. Instead, Defendant asserts that it has a defense to Plaintiff's claim. Defendant's Affirmative Defense must be proven at a hearing on the merits of this case, and any motion seeking to resolve this factual question is a motion for Summary Judgment, regardless of how Defendant chooses to title it. Plaintiff demands that Defendant be required to meet its burden of proving its Affirmative Defense and that Plaintiff be provided an opportunity to rebut the same.

    Supreme Court Rule 287(b) prohibits the filing of a motion for Summary Judgment in Small Claims Court. Because Defendant filed its "motion to dismiss" in violation of this rule, Plaintiff respectfully requests that the motion be stricken and this matter be scheduled for a hearing on the merits of Plaintiff's complaint.

    b) In the Alternative, Defendant is not entitled to judgment as a matter of law.

    The Telephone Consumer Protection Act ("TCPA") states that an Affirmative Defense is only valid if "the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection." Since Plaintiff's request to be put on the company-wide Do-Not-Call ("DNC") list (see Affidavit and attached copies of contemporaneous notes) was ignored not once, but twice, the policy followed by Convergys clearly is not "effective" if even "implemented." One error might be an oversight. But twice in a row is clearly not "effective," nor is it apparent that the Defendant is exercising "due care." Simply proclaiming that one has a policy and/or policy manual does not satisfy the Affirmative Defense requirements of the TCPA. Unless it is an effective system which is vigilantly enforced, it is as good as no policy at all.

    Significant factual questions remain as to how well the policy manual is actually followed. The existence of these questions makes summary judgment in the Defendant's favor inappropriate.

    Plaintiff has the following questions regarding the policy manual which was quoted in Defendant's Answer:

    - Does Convergys show every telemarketing operator the policy?

    - Does Convergys ensure that every telemarketing operator reads the policy?

    - Does Convergys ensure that every telemarketing operator understands the policy?

    - How does Convergys ensure that the policy is followed, and what disciplinary actions are taken if a telemarketing operator breaks the rules or doesn't read or understand them?

    - Paragraph 10 of the policy manual (Prohibited Practices) prohibits the following behavior: "...threats, intimidation, profane language, repeatedly ringing someone's telephone, or initiating a call to a person who previously expressed the desire not to be called." Why, then, was Plaintiff called after expressing the desire not to be called, and also why was Plaintiff threatened by Convergys's legal department (see Affidavit and comments about extortion in attached e-mail from Mark Booher)?

    - In the manual (Paragraph 13) it states that "The Company shall not withhold or alter the display of the telephone number from which the call originates on a Caller ID unit." Why, then, did Convergys's name show up on only one of the three calls (see Affidavit)? Should we then assume that the policy manual only applies to one-third or less of the cases?

    - Who is this manual for--just management? the legal department? The manual is written in language that the average telemarketer would not fully understand. Judging by the difficulty many telemarketers have just reading their own scripts, Plaintiff argues that the average telemarketer would not understand the passage taken from Paragraph 6 ("Do Not Call Restrictions"): "The business unit shall advise client at the inception of the business relationship that it is client's responsibility: i) to scrub all call lists provided by client to the business unit against the client's master do-not-call list prior to the submission of the same to the business unit, ii)to assess whether the consumer who has asked to have his/her name placed on a do-not-call list would reasonably expect that our client will place the consumer on the do-not-call list of its affiliates or subsidiaries, and iii) to communicate that consumer's request to the client's affiliates and subsidiaries." This language is typical throughout the policy manual, which is extensive and unlikely to hold the attention of anyone not in the management or legal department.

    - How could a person who has supposedly read and understood this manual, and therefore has been sensitized to issues included in this manual including the Company-wide Do-Not-Call list misunderstand the Plaintiff's request: "Please put me on the Do Not Call list for both Convergys and Ameritech?" Assuming the first incident was merely a fluke, how could another telemarketer with the same exposure to this policy manual misunderstand the request to "Please put me on the Do Not Call list for both Convergys and MCI WorldCom?" Such a misunderstanding is particularly inconceivable when one considers that Plaintiff went to the trouble of coaxing the name "Convergys" out of both telemarketers--information that the telemarketers did not give up voluntarily.

    The materials before the Court indicate that, regardless of the existence of Defendant's policy manual, Defendant did not implement any Do-Not-Call policy in a manner designed to "effectively" prevent violations of the TCPA. Accordingly, even if the Court chooses to entertain Defendant's mis-named motion for Summary Judgment, the Defendant has not shown that it is entitled to judgment as a matter of law. Indeed, if the Defendant is claiming that it has now submitted all the evidence it intends to present in support of its Affirmative Defense, then quite clearly Defendant can never prevail, and Plaintiff is entitled to judgment as a matter of law.

    The Arguments in Court

    After a couple of hearings, the lawyers for Convergys (I'm no longer dealing with Booher--he either drooled himself to death, or the company realized how useful he was in this case) have filed a motion to have the case dismissed. The Salt Lake City law firm hired a local Illinois lawyer firm to represent them. They tried to railroad my case with an "affirmative defense" argument, which they argued precluded my case from ever coming to trial. However, they have the burden to prove that they have "implemented with due care" an "effective" policy (words in quotes taken from the TCPA). I argued that their policy was not effective, if even implemented. I asked questions about how the policy was enforced. The Judge, considering my affidavit and response to their motion, decided that there were significant questions, and allowed the case to procede further.

    The case is set to continue on June 6, 2000 at 9 am in courtroom L in the Champaign County Courthouse in Urbana Illinois.

    The Interrogatories/Request to Admit

    When the Judge decided that the case should be heard, the nice man representing Convergys decided that he should ask for Small Claims Discovery, which includes Interrogatories and Requests to Admit. Basically, this means that questions will be asked in writing, and I have to answer them under oath.
    I assume he did this just to drag things out and be annoying, since I honestly can't think of what else they would possibly want to know from me. I objected to it, simply because I didn't want the additional hassle, but the Judge ruled that it should happen.
    Well, I have yet to receive their questions, and the deadline is tomorrow (5/16/00). I filed mine today, and I bet they're wishing they kept their mouths shut.
    So here they are: Questions that will make them squirm!


    It is intended by this set of interrogatories to elicit information not merely within Defendant's knowledge, but obtainable on Defendant's behalf, such as by Defendant's attorneys, investigators, and their representatives. Therefore, the term "Defendant" includes anyone acting on Defendant's behalf, including Defendant's attorneys, investigators, agents, insurance carriers and their representatives.

    As used herein, a request to "IDENTIFY" a PERSON is a request that YOU provide the PERSON's name, business and residential addresses and telephone numbers, employer and job title, nature of the knowledge or information they may have or may acquire, and nature of relationship to any party in this action.

    As used herein, the terms "YOU" or "YOUR" mean and refer to Defendant, Convergys Customer Management Group, Inc., its agents, attorneys, and/or officers.

    As used herein, the term "PERSON" includes any natural PERSON, firm, association, organization, subsidiary, partnership, business, trust corporation or public entity.)

    As used herein, the ACT means and refers both individually and collectively to 47 USC 227, 47 CFR 64.1200, Report and Order ("R&O") adopted by the Federal Communication Commission September 17, 1992 and Memorandum Opinion and Order ("MO&O")adopted by the Federal Communication Commission July 26, 1995, and other such promulgations of the Federal Communication Commission addressing interpretation and implementation of same.


    IDENTIFY fully the:
    (a) Telemarketing agent Jeremy Oxburrough who called Plaintiff on January 21, 1999; and

    (b) Telemarketing agent Rachel Hale who called Plaintiff on July 1, 1999; and

    (c) The PERSON in the capacity of or who functions as the immediate supervisor(s) of the PERSON(s) in (a) and (b) of this interrogatory; and

    (d) The PERSON(s) responsible for training the PERSON(s) in (a) and (b) of this interrogatory, in Defendant's policies for implementing the ACT; and

    (e) The PERSON(s) in custody of records of such training referred to in (d) of this interrogatory; and

    (f) The PERSON(s), and/or other source(s) who created Defendant's DO NOT CALL policy; and

    (g) The PERSON(s) or other source for scripts, instructions, and other documents used by Defendant's agents in (a) and (b) of this interrogatory in the performance of their jobs; and

    (h) The PERSON(s) in custody of documents referred to in (g) of this interrogatory; and

    (i) All PERSON(s) with access to any logs or recording devices that monitor or record information about the telephone calls placed by or on behalf of the Defendant that are described in Plaintiff's complaint; and

    (j) The PERSON(s) in custody of any logs and/or recordings referred to in (i) of this interrogatory; and

    (k) The PERSON(s) who design, program, or otherwise operate or have technical knowledge of the operation of the Defendant's telephone equipment used to make the telephone calls placed by or on behalf of the Defendant that are described in Plaintiff's complaint.

    IDENTIFY fully all PERSON(s) not previously identified in Interrogatory 1, who are known or believed by YOU to have knowledge, or who YOU know or believe may gain knowledge, of any allegations or events described in Plaintiff's complaint in this action.

    IDENTIFY fully all PERSON(s) not previously identified in Interrogatory 1 or 2, who are known or believed by YOU to have knowledge, or who YOU know or believe may gain knowledge, of any allegations, defenses, or events regarding Defendant in this action.

    State in detail the substance of each oral communication YOU have had with any PERSON, pertaining to the telephone calls in Plaintiff's complaint, and IDENTIFY the PERSON(s) such communications were engaged with or disclosed to.

    State in detail the substance of each written communication YOU have had with any PERSON pertaining to the telephone calls in Plaintiff's complaint, and IDENTIFY the PERSON(s) such communications were engaged with or disclosed to.

    List the date and time of all phone calls placed to 217 [phone # removed] regardless of whether the call was answered or not (a call is constituted by dialing), and IDENTIFY the person acting as the operator.

    Are the operators who contacted Plaintiff, Oxburrough and Hale still employed by Convergys? If not, when did they leave the company, and for what reason?

    Describe in detail all actions undertaken by Defendant to comply with the ACT, including but not limited to:

    (a) The date(s) each and every version of Defendant s DO NOT CALL policy was(were) developed and/or implemented; and
    (b) The changes made in each update

    (c) Any reprimands, disciplinary actions or changes as a result of Plaintiff's complaint or phone conversations with Defendant. Give the dates of any of these actions and IDENTIFY the PERSON(s) involved.

    Describe in detail each and every oral or written grievance, complaint, or objection the Defendant has received since the effective date of the ACT for conduct that the ACT prohibits or limits, and every oral or written grievance of the Defendant's clients have received for the same.

    List the names of any telemarketing companies which are subsidiary to Convergys, to which Convergys is subsidiary, or are owned by the parent company of Convergys, and list their relationship to Convergys.

    Describe in detail how telemarketing activities of the Defendant are managed and implemented, including but not limited to:

    (a) How telephone numbers are obtained; and

    (b) How numbers are selected to be called; and

    (c) How numbers are prevented from being called; and

    (d) What methods are used to IDENTIFY numbers YOU do not wish to call; and

    (e) The types of equipment used to effect these activities; and

    (f) How does an operator record the fact that someone wishes to be placed on the Do Not Call ("DNC") list, both for client and company-wide?

    (g) Is request in (f) hand written on paper, or in a computer? If it is computer driven, how does the operator specify that the person wishes to be put on the company-wide DNC list? Is there a special checkbox for company wide DNC, or does it have to be written in a miscellaneous comments section?

    (h) If computers are involved in (f) and (g), provide paper printouts of the computer interface (screen-grabs) that the telemarketer used at the time of the calls in question, along with a list of any changes that have been made since.

    State all facts on which YOU base YOUR denial of the allegations contained in Plaintiff's complaint, and upon which you base YOUR affirmative defense.

    State all changes in policy that have been implemented or proposed as a result of Plaintiff's dispute with Defendant, and the dates that these changes took place.

    List all witnesses YOU may potentially call to testify at a hearing or who may submit affidavits or any other form of testimony, as well as any evidentiary exhibits YOU plan on submitting. Also, list all information regarding "opinion witnesses," pursuant to Supreme Court Rule 213(g).

    Is there any business relationship between Convergys and Vision Cost, Discover Financial Services, First USA or Bank One? If so, describe the relationship and the dates the relationship started, ended, and any other significant dates in the relationship.

    If YOU allege that the phone calls in question (January 21, 1999 and July 1, 1999) did not take place, state any and all facts that you believe will support your position.

    If YOU allege that Plaintiff never requested to be put on Convergys's company-wide DNC list, state any and all facts that you believe will support your position.

    Describe in detail the training program for each telemarketer, along with any changes that have been made in the past two years. How are the telemarketers supervised to ensure that they follow policy?

    IDENTIFY all PERSON(s) whom YOU believe or contend have information relating to any of YOUR responses to these interrogatories, and the interrogatory for which such PERSON has information.

    Describe fully the chain of custody of any documents or evidence relating to any of YOUR responses to these interrogatories, and the interrogatory for which such evidence pertains.

    Address and answer the bulleted questions set forth in Plaintiff's Response to Defendant's Motion to Dismiss.

    Respectfully submitted,
    this the 15th day of May, 2000.

    ...and here are the Requests to Admit. They must answer these with a yes/no type answer.


    1. Convergys Customer Management Group, Inc ("Convergys") makes telephone solicitations on behalf of other companies in exchange for a fee.

    2. Convergys tries to maintain a "transparent" interface between its client and the person being called so that the consumer gets the impression that (s)he is dealing with the client directly.

    3. Convergys telemarketers do not volunteer the information that they work for Convergys. Rather, they present themselves as representing Convergys's clients, and only when asked mention the name Convergys.

    4. On July 1, 1999 Convergys placed a telephone call to 217 [phone # removed] for the purpose of telemarketing.

    5. On January 21, 1999 Convergys placed a telephone call to 217 [phone # removed] for the purpose of telemarketing.

    6. Plaintiff was not put on Convergys's Do Not Call ("DNC") List on January 21, 1999.

    7. Plaintiff was not put on Convergys's DNC List on July 1, 1999.

    8. Plaintiff requested to be put on Convergys's DNC List on January 21, 1999.

    9. Plaintiff requested to be put on Convergys's DNC List on July 1, 1999.

    10. Plaintiff requested and was put on DNC List for Convergys's client on January 21, 1999.

    11. Plaintiff requested and was put on DNC List for Convergys's client on July 1, 1999.

    12. Plaintiff was eventually put on the Convergys DNC list.

    13. Plaintiff was not put on Convergys's DNC List on the day of Plaintiff's first request, nor on the day of Plaintiff's second request.

    14. Plaintiff was placed on Convergys's DNC only after talking to Mark Booher.

    15. Convergys has placed calls to 217 [phone # removed] on occasions other than January 21 and July 1 1999.

    16. Mark Booher was acting as an agent of the defendant during his e-mail and telephone correspondence with the plaintiff.

    17. Mark Booher, an employee of the defendant, corresponded with the Plaintiff using the Defendant's electronic mail system and telephones during normal business hours.

    Respectfully submitted,
    this 15th day of May, 2000.

    Going Through the Motions

    Well, as I feared, June 6 came and went without the firm setting of a trial date, as was "supposed" to happen (if that's indeed what happens in a docket call). As expected, Convergys had another sleazy trick up its sleeve. It filed a "MOTION FOR LEAVE TO TAKE EVIDENCE DEPOSITIONS."
    They then listed 6 people in Utah and Nebraska and continued to waste the court's time.
    ...and I quote from their document:

    Illinois Supreme Court Rule 212(b)(2) allows the taking of evidence depositions and provides "that a party who is not a resident of this State may intorduce his own deposition if he is absent from the county..." Defendant's employees are absent from the county as contemplated by this statute.
         WHEREFORE, defendant CONVERGYS CUSTOMER MANAGEMENT GROUP INC, prays that this court allow the taking of evidence depositions of the above-named individuals in the state in which each individual resides pursuant to the Illinois Code of Civil Procedure and Illinois Supreme Court Rules.

    Defendant "prays," huh?
    I'd say that's a good way to put it. Here's my rebuttal:

    1.) This motion should never have been filed in the first place.
    Under Illinois Supreme Court Rule 287, one may not file motions without leave of the court, except under the category of 2-619 and 2-1001. I shot down their 2-619 argument (which arguably didn't even fit in that category) in the preceding hearing, and 2-1001 covers getting a different judge to hear the case (I'm surprised they haven't gone after THAT angle yet). The motion they filed doesn't fit under either of these categories.

    2.) Their claim that Rule 212(b)(2) entitles them to take evidence depositions out of state is flawed for the following reasons:

  • The people they want to depose are WITNESSES, not PARTIES in the suit. The rule they are trying to invoke applies only to parties, not witnesses ("a PARTY who is not resident of this state").
  • Also, the rule says that a "party that is not a RESIDENT of this state." The Code of Civil Procedure, sect. 2-102(a) defines a corporation authorized to do business in the state as a resident, therefore the rule they are trying to invoke doesn't apply to them because they ARE residents!
  • 3.) They have never before objected to the jurisdiction or the venue, yet they now want ME to fly to another state to depose THEIR witnesses in THEIR affirmative defense. They are essentially trying to move the trial to another venue.

    While the judge did not grant their motion for leave to take evidence depositions, she also didn't shoot it down.

    Their attorney suggested that we have ANOTHER hearing to determine all the motions on the table (theirs), and so it was to be.

    Next hearing date: June 28, 10 am.

    On an interesting note, after the hearing, their attorney approached me and dealt with me directly for the first time. I believe this has to do with the all of the local media attention I've gotten recently. He said he read my website. Gosh, I'm flattered!

    Since they now know what I'm all about, they realized they might actually have to take me seriously (I think the interrogatories helped). Their attorney, Ken Reifsteck (who is definitely an improvement over Booher) told me that he wants to get this thing to trial as quickly as possible. he's just filing these motions because the corporate lawyers in Salt Lake City told him to. I'd say that just proves my point about them trying to drag this thing on.

    On a final note, they also filed an objection to my interrogatories. They said that the law only allows for 30 questions, including sub-parts. I made the mistake of trying to be helpful by splitting my list of people that I wanted identified into seperate parts, which technically exceeded 30. No good deed goes unpunished. I refiled the interrogatories, removing a few questions and consolidating the names. No biggie, but more delay.

    The Obscenity

    As you read in the Going Through the Motions segment, Convergys filed a motion to take evidence depositions out of state. Happily, the judge listened to my arguments, and may or may not have even needed to hear them, as she eloquently summed the situation up without even addressing my arguments directly.

    She said that the motion "bordered on obscene," and that this is, after all, small claims court. Yes, even the Judge seems to be getting tired of their games. I am now waiting for their answers to my interrogatories, due mid-July. From there, I hope the end will be in sight.

    The Settlement

    And of course, since you are the clever reader, you noticed the check at the top of the page.   Yes, it's over, after a "mere" 13 months.   But Convergys got off easy. Lemme 'splain...

    As you have noticed, they spent quite some time jerking me around. This caused me to actually have to learn more about this craft. I suppose I should thank them. See, if they had just paid up like they should have, they would have been out a mere $500. But since they were such a pain in the ass and took so long to finally pay up, not only did they spend a couple thousand dollars (my guess) defending this, I also got all that media attention, which led to others around the country who are fighting the same fight contacting me and telling me to reread the law and apply it to its full extent.

    Instead of suing for $500 per offending phone call, I should have been suing for $500 per VIOLATION, and they made several violatons per call. There are, as I understand it, 6 ways to violate the TCPA. I intended to ammend my complaint as follows:

    They failed to add me to their DNC ("Do Not Call") list at the time I made the request. They failed to do so twice, and only added me when I complained to their legal department. Two violations times $500 = $1000. plus...
    They called me at least once after my initial DNC request. But I think they called more times than that--I just wasn't around to answer the phone. Never mind whether I answered or not, they PLACED the call, and that's the violation. I intended to use the interrogatories to find out just how many times they had called me, and then multiply that by $500. Obviously, I already had ONE violation in this area, which brings the total to AT LEAST $1500.

    So what brought Convergys to suddenly settle, and why did I accept? These are two seperate issues, and once again, lemme 'splain...

    As far as I can tell, Convergys might have actually gained an asset when they hired some competent local council to defend them, as opposed to Booher, who is only the first 3/5ths of an asset--making him just an ass. Their local council, Mr. Reifsteck probably pointed out the futility in continuing. He told me that the legal games were not his idea--he was being instructed to play them by the company (to paraphrase Reifsteck and to suggest Booher, who was pulling the strings from Ohio).

    And I know that Convergys knows about this website, and probably has been keeping tabs on this site to see what I'm up to. If you don't mind, dear reader, I'd like to send a personal message to Mr. Booher, since he's here with us. I'm sorry to interrupt your reading experience, but if you'll just kindly skip this next red paragraph so Mark and I can share a private moment...

    Mark, Mark, Mark. What happened? You seemed so sincere when I talked to you the first time on the phone. I remember it like it was yesterday...or 13 months ago. I remember how you suddenly turned so surly when I said that I wanted my $500 which was entitled to me by law, and I realized that I had lost my new friend as quickly as I had made one.
    I remember how condescending you were in your email to me. Mark, you used my first name at the beginning of a few sentences in your email to show how condescending you could be. And in that same email, where you claimed that you don't ever settle out of court, you said, "We take our obligations under the law very seriously and make every reasonable effort to comply with the law."
    Mark, I'm hurt. I don't think you meant that, and I don't think you know just how sad it makes me to know that I've been lied to by you. Repeatedly.
    I don't think I'll ever trust a telemarketing lawyer again.
    You know why I called you names in the previous paragraphs, don't you? It's because I'm HURT! -[sob]- It's not enough that I, as a know-nothing pro se litigant beat you at your little law games, even though you tried to cheat. It's not enough that my victory (I mean "our settlement"--nobody won here) makes the time you spent in law school, and perhaps your entire life seem like a waste. No, that is of small consolation to me. I know it's not professional of me to have called you names like that, gosh-darnit!!! But I HAD to. You know, it was either call you names or resort to thinly veiled threats of extortion lawsuits, and I don't know anyone who's a big enough jerk-off to do THAT.
    I'm sorry if nobody liked you as a kid.
    Or as an adult.
    I'm sorry if you never got any phone calls from people who cared, so you decided that you needed to enable the vexatious harassment of a million people per day who never reached out to touch you. I shouldn't even be sharing this with you--I don't know why I'm doing it. I just hope you have the decency not to tell everyone about this conversation. I guess somewhere deep in my heart there's still that hope...
    --a hope that someday we can still be friends again like we were for the first 2 minutes we shared together on the phone before everything went horribly awry.
    Take care, Marky.

    Thanks, dear reader, for understanding and letting us share our private time.

    Anyway, I think Convergys settled because they really didn't want to answer those interrogatories they shoved upon themselves via their genius.
    I mean they REALLY didn't want to answer them.
    No, I don't think I got the point across. I mean they REALLY didn't want to answer those interrogatories.
    That was a whole can of liability they didn't want to open. Add that to the fact that the judge was clearly getting irritated with their games, as was evident by her comment that their last motion was bordering on obscene. They were seeing how far they could push the judge, and they just found out. Now they would actually have to argue the case. Since they didn't have one, they thought about alternatives.

    So, knowing (conjecturing) all that, why in the hell would a guy like me settle?

    Timing. See, I was about to enter grad school.

    I was about to enter grad school in Texas, which is a long way from the Illinois courtroom.

    The week before I left for Texas, I got the call from Convergys with their offer to settle for the full amount plus my costs. Since I was debating whether to come back for each hearing or to hire a lawyer, this gave me a better option. I would NOT have let the case go. I was planning to ammend my complaint for the larger amount, then hand it over to a lawyer to finish it for me. But this way, I got the satisfaction of beating Convergys myself. And I probably would have had to pay the lawyer as much as the additional money brought in from the additional violations. And I still have other companies who have been waiting patiently to be sued, but Convergys has been hogging the limelight. It's time to move on, armed with the new knowledge. My next case will be for $2500. That number could go up, depending on what I find in the interrogatories.

    That's it for this chapter, folks. Keep it tuned.


    PS. Oh yeah.... I almost forgot....
    Part of the settlement agreement says that nobody won or lost, nobody admits anything, it was all just a big friendly misunderstanding, just like on "Three's Company" or any other lame sitcom where it all works out in 22 minutes (or 13 months). To quote part of the agreement, "This settlement represents a compromise of disputed and doubtful claims, and neither party admits, and each party expresly denies, andy wrongdoing or liability of any kind."

    whatever. If you'll excuse me, I've got to get to the bank....

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