Glossary: the words in the letter

16.1A to L

Answer

The defendant's formal written response to a complaint, filed with the court, admitting or denying each allegation and stating defences. Due by a deadline the court sets.

Arbitration

Resolution of a dispute by a private decision-maker rather than a court, usually because a contract requires it. The decision is generally binding and appeal is limited.

Assurance of voluntary compliance

A settlement with a state attorney general in which a business agrees to change practices, and sometimes pay, without admitting a violation.

Civil investigative demand

A compulsory request for documents, answers or testimony issued by an agency such as the FTC or a state attorney general during an investigation. It has a return date and legal force.

Class action

A lawsuit brought by one or more people on behalf of a larger group with the same claim. In telemarketing matters, the route from one letter to a class runs through discovery of the calling records.

Complaint

The document that starts a lawsuit, setting out the plaintiff's allegations and what they ask the court for. Served with a summons.

Consent (prior express written consent)

Under the FCC's telemarketing rules, a signed agreement authorising automated marketing calls or texts from a named seller to a specific number, with a statement that consent is not a condition of purchase.

Default judgment

A judgment entered against a defendant who did not respond to a complaint by the deadline, without a trial, for what the complaint asked.

Demand letter

A private letter stating a claim and asking for payment or a change in conduct by a date, sent before any lawsuit. Not a court document.

Discovery

The stage of a lawsuit in which each side must produce documents and answer questions under oath. It is how the other side learns what your records contain.

Do Not Call Registry

The national list of telephone numbers whose subscribers have asked not to receive telemarketing calls, maintained by the FTC. Businesses must scrub lists against it every 31 days.

Fee-shifting

A rule, in a statute or contract, that the losing side pays the winner's attorney fees. In most United States claims each side pays its own; some statutes shift fees to a winning claimant only.

Indemnity

A contractual promise by one party to cover another's losses from a claim. A vendor's indemnity gives you a claim against the vendor; it does not change your liability to the person who sued.

Injunction

A court order requiring a party to do or stop doing something. The main remedy in ADA website claims and in trademark cases.

Liquidated damages

A fixed or formula sum set by statute or contract in place of proving actual loss. Under the FLSA, an amount equal to unpaid wages, which doubles the claim.

Litigation hold

The obligation, once litigation is reasonably anticipated, to preserve all records that may be relevant. A demand letter's preservation paragraph invokes it.

16.2M to Z

Mediation

A negotiation assisted by a neutral mediator who has no power to decide. Common before trial; often required by courts.

Motion

A formal request to a court for a ruling, such as a motion to dismiss a complaint or for a default judgment.

No admission of liability

A standard clause in a settlement stating that the settling party does not admit the claim. The reason a settlement is not an admission of guilt.

PACER

The federal courts' public electronic record system, searchable by party name for a small per-page charge. Used to check whether a sender or law firm has filed cases.

Personal liability

Liability of an individual, such as an owner or officer, as distinct from the business entity. Available under some statutes where the individual directed the conduct.

Private right of action

A statute's grant to private persons of the right to sue for its violation, as distinct from enforcement by an agency. The TCPA, the Copyright Act and the FLSA all have one.

Registered agent

The person or company designated in a state registry to receive legal papers for a business. Serving the registered agent is service on the business.

Release

The clause or document by which a claimant gives up claims, usually in exchange for payment. Read for exactly which claims, parties and period it covers.

Retaliation

Adverse action against a person because they made a complaint, filed a charge or reported a violation. Unlawful under most employment statutes and often easier to prove than the underlying complaint.

Service of process

Formal delivery of a summons and complaint to a defendant in a way the court's rules allow. The answer deadline runs from it.

Settlement

A private agreement resolving a claim, usually payment or conduct in exchange for a release, with no admission. Not public.

Small claims court

A simplified court for claims under a limit set by state law, with relaxed procedure and usually no need for a lawyer.

Statute of limitations

The period within which a claim must be filed. Four years for the federal TCPA; set by statute for other federal claims; set by each state for state claims.

Statutory damages

A fixed sum per violation set by statute, recoverable without proving actual loss. $500 to $1,500 per call under the TCPA; $750 to $30,000 per work under the Copyright Act, if registered in time.

Summons

The court's notice, served with the complaint, that a case has been filed against you and that you must respond by a stated time.

Tolling

Pausing a limitation period, for example by written agreement while the parties negotiate.

Treble damages

Damages multiplied by three, allowed by some statutes for willful violations. The TCPA allows up to three times the $500 figure for willful or knowing violations.

Undertaking

A written promise to do or not do something, often enclosed with a cease and desist for signature. A contract once signed; have it read first.

Vicarious liability

Liability for the acts of another, such as a seller's liability for calls a vendor made on its behalf.

Willful or knowing

The state of mind that allows increased damages under several statutes. Under the TCPA, generally read as knowing that the call was being made, not knowing that it was unlawful.

The terms in use: how to respond to any demand letter and settle or fight: how to decide.