November 27, 2022

Volume XII, Number 331

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Fake It Until You Make It (TCPA Edition): Plaintiff Who Faked Interest and Requested Calls Can Still Sue For Calls She Requested, Court Holds

I always know a case is going to cause a stir when a Plaintiff’s lawyer flips it to me, and this one fits the bill.

In Atkinson v. Pro Custom Solar, SA-21-CV-00178-OLG (W.D. Tex. Sept. 1, 2022) the Court denied the defendant’s summary judgment motion and did some damage to the hopes and dreams of callers in the menatime.

Per usual the defense shot itself in the foot a few times. First, it raised an Article III standing “concrete harm” argument, which is a really bad idea since the Fifth Circuit has already directly held that the receipt of even a single unwanted call affords Article III standing. Yes, that is also a bad ruling, but the lower court is bound by it and wasting a district court’s time by trying to convince it to disregard binding precedent is generally a good way to get walloped. And so they were.

Second, the court found that VERBAL consent to receive calls is not sufficient to permit calls to numbers on the DNC. Only express written consent does the trick.

Pause.

Now this is a bit tricky. On the one hand the Court is correct that written consent is required to permit solicitation calls to a consumer whose number is on the DNC list. On the other hand, however, a caller may contact an individual on the DNC list for 90 days whenever an inquiry regarding that company’s goods or services. There is some obvious tension in these provisions but in most cases they live harmoniously with one another.

Remarkably, in the Atkinson case the defense apparently did not argue–at least the court did not address any argument–that the “verbal consent” the Defendant obtained was an “inquiry” for DNC purposes. They, apparently, just argued that the calls were made with consent. My goodness what a miss (if that is what happened–I didn’t pull the briefing.)

In a moment of good news, the Atkinson court rejects Plaintiff’s footnote 7 argument and holds only randomly produced and stored phone numbers give rise to a TCPA claim. Merely automatically sequencing numbers does not.

And in more good news, the Court confirms that claims under Section 302.101 of the Texas Business & Commerce Code are not viable where the calls at issue are marketing only and the transaction is to be completed in a face to face transaction. Since these calls were to set up an appointment for solar panel discussions the act does not apply.

Enjoy that moment of good news. Bad news returns in 3, 2, 1…

The Plaintiff filed her own summary judgment motion and that motion was GRANTED. Specifically the Court found that the defendant placed more than one call to a number on the DNC list without the proper level of consent within a 12 month period. Plaintiff is also permitted to argue that Defendant is liable for calls made by lead generators before the Defendant obtained the phone number. But that will have to wait for trial.

Saving the worst for last, the Court also holds that Defendant cannot make out a fraud claim against the Plaintiff, even though the Plaintiff feigned interest in the calls at issue. Specifically the Court held that Defendant’s wasted time and energy selling solar panels was no waste at all:

Time spent pitching possible sales of solar panels is not an injury. This is what Momentum does day in and day out in an attempt to inform prospective buyers about its product and convince them to invest in its solar panels. None of Momentum’s sales pitches guarantee a future business relationship. This is not just an issue of being unable to quantify damages; Momentum’s theory of injury, loss, and damages is pure speculation.

Hmmm.

Seems pretty clear to me that if you waste my time pretending to be interested in legal services and I give you a free 30 minute consultation when I could have been doing something else, that I have been damaged. Sure I give free consultations all the time–no obligation–and I am happy to do it for someone who might actually need some help, there’s no way I’d want to do that for someone who was just lying and tricking me into wasting time. That is absolutely damage. And that is what the Defendant here claimed happened.

At bottom this case is a real set back for callers. The case overlooks the important inquiry defense and seems to permit bad guys to set up their own harm by suing for calls after they expressly invite them. And it stems–in my view–from a failure to assert arguments properly. This entire case is one about the inquiry exception to the DNC. Yet the word “inquiry” does not appear in the ruling. Everything else about the case smacks of missed opportunity and flamboyant misapprehension of the TCPA’s most basic provisions. Another example of why TCPA defenses are best left to the writers (and readers) of TCPAWorld.

Also, pay close attention folks because they Dame is about to report on another case that actually opens the door to exactly what Atkinson rejected. Read these two cases together and you might get a sense of how wild TCPAWorld really is…

© 2022 Troutman FirmNational Law Review, Volume XII, Number 249
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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