We spend a lot of time around here trying to stop unwanted robocalls and outing companies that sell the fake data leads that result in those calls.

But it also needs to be remembered that there are a ton of instances of people trying to set up their own lawsuits by filling out forms in fake names and then suing over the resulting calls.

While it can sometimes be hard to tell the difference between these two scenarios when either is determined aggressive litigation tactics to punish the wrongdoer is necessary.

For instance in Hastings v. Callcore,  2024 WL 943952 (E.D. Ark. March 5, 2024) the plaintiff in a TCPA class action allegedly filled out a form in the name of a different individual for the purpose of setting up a lawsuit. The Plaintiff subsequently received calls in the fake name and pretended to be that person, resulting in a transfer to an insurance seller who was eventually sued.

Well the Defendant did not take the issue laying down and turned around and sued the Plaintiff right back–for fraud.

The theory is that by providing fake information the Defendants were damages by having to rely on the misstatements. The Court agreed that the case was sufficiently plead to survive dismissal:

After careful review of the allegations of the complaint, the Court concludes that Assure has alleged sufficient facts to state a claim for fraud. The false representation of material fact alleged by Assure is that Hastings used the false name “Marvin Taeese” when he consented to receive prerecorded telemarketing calls regarding health insurance quotes. Specifically, the counterclaim alleges that on December 3, 2019 at 9:52 EST, Hastings visited a specific website and provided the false name along with his correct telephone number “for the purpose consenting to receive prerecorded telephone calls and other communications from third parties” about health insurance quotes. (Doc. No. 11 at 15). Assure alleges that Hastings also verbally consented to being contacted by telemarketing agents regarding health insurance quotes on March 8, 2021 at 9:24 EST, again giving the false name and his correct phone number.

In addition, the counterclaim alleges that when Hastings clicked the submit button on the website on December 3 after entering the false name and his phone number, he expressly consented to receive pre-recorded messages about health insurance from a long list of third-party partner companies, including Smarthmatch, “and/or agents” at the mobile number he provided. Similarly with the verbal consent on March 8, the counterclaim alleges that Hastings agreed to receive telemarketing calls and pre recorded messages “even if my telephone number is a mobile number that is currently listed on any state, federal or corporate “do not call” list.” (Doc. No. 11 at 17). Having secured these consents, Assure alleges that a live CallCore agent called Hastings on March 27, 2021 on behalf of Smartmatch. Throughout the call, Hastings answered to the name “Marvin” without correcting the calling agent or advising them that he was not interested in receiving health insurance quotes.

In sum, the counterclaim alleges that Hastings made knowingly false statements of fact regarding his name and his interest in receiving insurance telemarketing calls for the purpose of inducing reliance on these statements. It alleges that Assure relied on the false statements to purchase the lead. As to damages, Assure alleges that it paid CallCore for conducting its lead generation services for Smartmatch based on Hastings false representations. It also claims harm to its good will and reputation as well as costs it will incur in defense of Hasting’s claim. These allegations are sufficient to satisfy the requirements of Rules 12(b) (6) and 9(b).

So there you go. Bad guys can face fraud claims related to their efforts to set up lawsuits. Sounds right to me.