MANHATTAN (CN) – A politician who lost a local election by nine votes can get a refund from a robocall company that allegedly threatened to label him a “deadbeat” in a new round of automated messages, a federal judge ruled.
Michael Diederich Jr., a former Democratic hopeful for Rockland County Legislature, said he paid the Florida-based company Win Your Race LLC about $900 to robocall his base on each of the four days leading up to Election Day. “For reasons unknown,” Diederich says Win Your Race flubbed the last two days of calls, which he had allegedly designed to be the most persuasive.
The last two calls did not go out until half of Diederich’s constituents had already voted, and Diederich lost the race by nine votes out of about 5,000 cast, according to the complaint.
Though the company promised “Guaranteed Results,” Win Your Race executive Ernest Wright allegedly refused to return Diederich’s payment of $900. Diederich says he then got his credit card company to reverse half of his payment.
Wright allegedly threatened to robocall the Rockland constituents again with a message that called Diederich a “deadbeat.”
“Plaintiff was shocked,” according to the pro-se complaint. “Essentially, defendant Wright was threatening to inform plaintiff’s friends, neighbors, clients, potential future clients and potential future voters that plaintiff was a ‘deadbeat’ and a person who does not pay his financial obligations.”
Diederich wrote that he “yielded to the threats and paid defendant Wright what was demanded.”
On Sept. 24, 2008, Diederich for Legislature sued Wright and Win Your Race, on Diederich’s behalf, for breach of contract, negligence, extortion, conversion, defamation, false advertising and fraud.
Diederich won summary judgment on the breach-of-contract claim; the other charges were either dismissed or withdrawn.
On Wednesday, U.S. District Judge Cathy Seibel rejected Diederich’s claim for approximately $130,000 in lost wages, finding that he offered no evidence the robocalls would have nudged more than nine voters to change course.
“[Diederich’s] expert opined that Diederich would have won the election were it not for defendants’ failure to place the robocalls, but his opinion was purely subjective,” Seibel wrote. “It was not based on any empirical studies, analyses or data, but rather rested on his own personal preference for Diederich over Diederich’s opponent, and generalities about the effectiveness of robocalls that were unmoored to any scientific, statistical or even anecdotal evidence. Diederich’s own declarations likewise rested on his belief in his own message, not on any concrete evidence from which the Court could measure how effective robocalls – among the many factors that go into a voter’s choice – would have been.”
Win Your Race must return Diederich’s $927 plus $250 in incidental damages.
Diederich did not immediately respond to a telephone request for comment.