October 28, 2021

Volume XI, Number 301

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Bad TCPA News: Plaintiff Permitted to Sue After Answering His Mother’s Phone in Stunning Expansion of TCPA Standing Principles

Editor’s Note: I updated this post on June 7, 2021 to make it a bit more accurate.

Hate is a strong word, but I really really really don’t like this one.

A magistrate judge in New York just recommended a finding that a party who picked up his mother’s phone– and thereby claims to have received a Robocall he didn’t want without regard to whether she wanted it– has both Article III and statutory standing to sue under the TCPA, and I’m sulking.

The case is Bank v. Gohealth, 19 CV 5459 (MKB) (CLP), 2021 U.S. Dist. LEXIS 44110 (E.D.N.Y. March 8, 2021) and, as I’m about to explain, I think the Defendant got in its own way here.

But first the facts.

Repeat TCPA player Todd Bank was at or near his mom’s house on a blistering hot Friday afternoon in New York back in August, 2019. The phone rings. Turns out it was GoHealth (allegedly) calling to offer his mother a Medicare supplement.

Aghast that Defendant (or someone on its behalf) would call his mother’s phone to offer timely and important information potentially impacting her health, a month later—in September 2019—Bank sues GoHelath in connection with that one little phone call.

It is unknown whether Bank ever told his mother about the phone call or his intention to sue GoHealth for receiving a call intended for her. It is also unalleged whether his mother–the party to whom the call was addressed–wanted the call. (He did, however, allege that no one had consented to the call.)

So, although the Plaintiff answered a call that was plainly made to his his mother’s phonethe Court, nonetheless, found he had standing to sue because he received a call on her number that he didn’t want.

Let that sink in.

You see why I’m in such a bad mood over this one?

As I mentioned at the top, however, some of this is a result of how Defendant framed the argument. Defendant argued, for some reason, that only a “called party” has standing to sue under the TCPA—an argument that hasn’t hit the mark in a long time. The “called party” determination is critical for consent purposes—i.e. determining whose consent is required is necessary to assure the Defendant a steady defense—but doesn’t matter a wit from a standing perspective. So while Defendant is correct that a casual user of the phone may or may not be a “called party”—that’s a tricky factual determination turning on the user’s rights vis a vis the phone line—that doesn’t mean the individual lacks standing to sue.

Rather that determination turns on whether the Plaintiff has a privacy interest in the phone line. While the Court in Bank actually got to the right analysis on its own, the circuitous route it took to get there lead it to expand some existing case law in favor of the Plaintiff and resulted in a thoroughly analyzed ruling—one that unfortunately expands the rights of incidental call recipients.

On the plus side, however, Plaintiff explained in an opposition filing—relied on to some degree by the court— that he spends 1/3 of his time at his mother’s house. So, the argument goes, he wasn’t truly just a random recipient of a call that Friday afternoon, but a 1/3 user of the phone line. Maybe.

Read narrowly, therefore, Bank only holds that a customary user of the phone with a 1/3 interest in the line potentially has standing—the Court did acknowledge a question of fact on the issue.

And let’s just read it narrowly and be done with it.

Notably the Court goes on to recommend dismissal of the case on vicarious liability grounds—which is pretty tough to pull off at the pleadings stage.

So this case is basically the TCPA equivalent of Defendant swinging and missing at a ball sitting on a tee, and then crushing a home run off a Chapman 105 mph fastball.

While the home run is good to see, unfortunately that first swing and miss likely means bad standing case law for TCPAWorld for some time to come.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 70
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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