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District Court Dismisses Ex-Attorney and TCPA Serial Litigant’s Claims with Prejudice

On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.

The court observed that the plaintiff—a former lawyer named Michael Worsham who was disbarred in 2015—is now a frequent pro se plaintiff. In this action, he alleged that Discount had violated Section 227(b) and (c) by making seven automated calls to a landline number that was on the National DNC Registry.

The court rejected both theories of liability. As for Worsham’s ATDS claim, the Court found that, although he had claimed in conclusory terms that the calls “were all initiated and made with an [ATDS] as defined by 47 U.S.C. § 227(a)(1),” he had alleged no facts from which a court conclude that that was actually the case. Worsham, 2021 WL 50922, at *3. And as for his DNC claim, the Court similarly found that he had not alleged that his number was a “residential” number within the meaning of Section 227(a). In a previous lawsuit, Worsham repeatedly asserted that the same number was his former law firm’s business line. “Where there is clear evidence that a cell phone line is used only or primarily as a business line,” the Court observed, “courts have granted summary judgment to the defendants.” Id. (citing Smith v. Truman Road Development, LLC, No. 18-0670, 2020 WL 2044730, at *11 (W.D. Mo. Apr. 28, 2020); Mattson v. Quicken Loans Inc., No. 18-0989, 2019 WL 7630856, at *5 (D. Or. Nov. 7, 2019)). Further, putting aside whether the number was “residential,” Worsham had not established that the number was appropriately listed on the DNC, such that telemarketing calls to the number would violate 47 C.F.R. § 64.1200(c)(2). The court noted that this number was publically available because it was registered with PACER and that business numbers are not permitted on the DNC. As such, there could be no violation of the TCPA or MDTCPA based on Worsham’s allegations.

Interestingly, Worsham also asserted that Discount had violated the TCPA and FCC regulation 47 C.F.R. § 64.1200(d)(4), which requires that telemarketers “provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and the telephone number or address at which the person or entity may be contacted.” The Court rejected this theory of liability as well, finding that there is no private right of action as to an alleged violation of 47 C.F.R. § 64.1200(d)(4), and by extension the MDTCPA. Worsham, 2021 WL 50922, at *4.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 19
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About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney
Partner

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...

215-988-2604
Amanda M. Pasquini Commercial Litigation Attorney Faegre Drinker Law Firm Philadelphia
Associate

Amanda Pasquini has a broad litigation practice that focuses on complex commercial litigation in areas such as contract disputes, class actions, intellectual property, white collar and antitrust. She participates in all aspects of litigation. Her experience ranges from pre-discovery counseling, arbitration support, trial preparation, settlement negotiations and appeals.

Amanda interned for the Honorable Judge Lawrence F. Stengel of the U.S. District Court for the Eastern District of Pennsylvania, the Honorable Judge Jose L. Linares of the U.S. District Court for...

215 988 2788
Zoe Wilhelm, Drinker Biddle Law Firm, Los Angeles, Privacy and Litigation Attorney
Associate

Zoë K. Wilhelm has a broad litigation practice, with an emphasis on cases involving privacy-based claims, corporate governance disputes, and consumer class actions. She has substantial experience representing communications companies. Zoë writes and speaks frequently about data security and privacy litigation.

Experience

 

  • Successfully defended telecommunications company in a class action asserting...

310-203-4034
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