November 28, 2021

Volume XI, Number 332

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Long Story: Todd Bank Threatens to Sue Me for Blog Post–And He Actually Has a Point! (Although He’s Mostly Wrong)— But Really, It’s a Long Long Story

Editor’s Note: This seemed like it would be amusing so I agreed to run it. In the end I think it just became too long (and kind of boring) because Todd just wouldn’t stop with the edits and provisos. Hopefully you like it though. Either way, it beats a baseless lawsuit, I guess. The things I endure for TCPAWorld.

Running TCPAWorld.com is mostly awesome coolness.

I get to cover interesting stories and bring to light nuances in case law that most everybody else misses. I get to meet tons of new people (and occasionally new clients) and chat with regulators, opinion makers, legislators, outside counsel, in-house counsel, opposing counsel, trade organizations, carriers, call-center operators, platform providers, and the like.

Tons of fun people to play with here in TCPAWorld, and I enjoy being your Czar.

But it’s not always fun. Take, for instance, Todd Bank recently criticizing my writing style and threatening to sue me for defamation, which is arguably even worse. And then I have to respond to it—publicly, of course.

Problem is, the guy just kept responding to everything to the point that this post has become tedious and wearying instead of fun and accessible. But he seems pleased that I was willing to engage with him at such length, so…glean what you can.

First, many of you are probably asking who is Todd Bank and who made him king of prose found on legal blogs? Well, he’s the guy who filed a TCPA lawsuit over calls made to his mother’s phone a while back and, apparently, an avid reader of my blog. (Or at least stories that involve him.)

He wrote a thoughtful letter on the subject—which can be found here: Bank’s Nice Letter Threatening to Sue Me

To be clear I have no personal or firsthand knowledge that anything Bank says in his letter is factually true. Nor do I have any idea whether it is false (I did not independently go back and read each of the citations to the record he provides, but you can if you’d like.)

Now, as we’re about to find out together, Todd is mostly way off base here. But having gone back and forth with Todd over the last few weeks (gees, months now) about this, I have to admit he has a couple of valid points buried in with a bunch of nonsense (my opinion).

Since you probably have nothing else to do on a beautiful Wednesday, let’s walk through his letter together. It’ll be fun. I mean, less fun than things that are actually fun. But fun in an ironic “is this real?” sort of way.

First, he says:

The above-referenced article by you, which was published on March 11, 2021, states: “[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,” i.e., the Telephone Consumer Protection Act, 47 U.S.C. § 227 (emphases are yours, as are all other emphases when this letter quotes your article). Your article also states: “[i]t is . . . unalleged whether his mother–the party to whom the call was addressed–wanted the call.” However, as the next two paragraphs set forth, you knew that these statements were false.

Ok. So I said that the claim arose out of a guy picking up his mother’s phone and suing for receiving a Robocall he didn’t want without regard to whether she might have wanted it. And also that the claim has Article III and statutory standing implications.

Bank says this is false—and I knew it—based on the next two paragraphs of his letter. Let’s see if he’s right.

You correctly state that I “claim[ed] to have received a Robocall [I] didn’t want,” as I had alleged as follows: “[t]he GoHealth Telephone Calls were not preceded by the written consent of anyone who had the legal authority to provide such consent.” Second Am. Compl. (Dkt. No. 18), ¶ 67. Further, you clearly recognize that my mother had had the legal authority to provide consent: “[s]o, although the Plaintiff answered a call that was plainly intended for his mother on a phone line that belonged to his mother, the Court, nonetheless, found he had standing to sue because he received a call on her number that he didn’t want.” You and I would perhaps disagree on whether I had had the legal authority to provide consent. However, both you and I agree, as would a reasonable reader of your article, that my mother had had the legal authority to provide consent, for, as I had recognized before the District Court, and as was noted in the Report and Recommendation that your article was about, “consent by either plaintiff or his mother would have been a defense regardless of who the plaintiff was.” Bank v. Gohealth, No. 19-cv-5459, Report and Recommendation (E.D.N.Y. March 8, 2021) (“R & R”; Dkt. No. 34) at 18 (my emphasis).

As shown by the above, your statement that “[i]t is . . . unalleged whether his mother–the party to whom the call was addressed–wanted the call” is plainly contradicted by my allegation that “[t]he GoHealth Telephone Calls were not preceded by the written consent of anyone who had the legal authority to provide such consent.” Second Am. Compl., ¶ 67 (my emphases). Thus, you left the reader to wrongly believe that I might have brought a case that I knew lacked merit (that is, because my mother had consented to the call), whereas you knew that this was not so.

Yeah, that was long. The gist seems to be that I should have assumed—based upon his vague allegation that no one with the legal ability to consent gave consent—that his mother did not, in fact, consent. That’s a fair point. But he also assumes that merely because he alleged that nobody—including, presumably his mother—consented that everyone (and especially me) ought to equate that with an allegation that the call was unwanted by his mother. But that is absolutely not true. Just because a call is unconsented does not mean a call is unwanted People receive calls all the time they want that they didn’t expressly consent to. Wanting a call and consenting to a call are two completely different things—which is critically important from an Article III perspective. That’s why not every TCPA violation causes a “concrete injury” for Article III purposes to begin with. There’s a gap between the procedural protections afforded by the statute and the substantive right protected by the statute. That was my entire point.

Todd responds, however, (and yes, he responds to everything) as follows: “The only allegation that could be characterized as a claim that the call was “unwanted” is the allegation that it was made without consent. Indeed, one of the issues regarding Article III standing was that I did NOT allege any specific harm, such as alleging that I was annoyed, that the call was “unwanted,” etc. Thus, it made no sense of you to say that I alleged that the call was “unwanted” by me but did not allege that the call was unwanted by my mother.” Later he added—“ my point is that the only allegation that even arguably related to unwantedness was the allegation of non-consent, which, as I showed, applied to my mother and me; where else did I alleged that the call had been unwanted by me?”

Make sense? If it does to you, that’s great. (Todd responds: “it should make perfect sense, actually.”)

There’s a third piece to this as well—that I falsely suggested Bank knowingly brought a case without merit. To be clear Bank definitely did bring a case without merit—at least in my opinion and in the opinion of the Court. But maybe Bank thought his case was perfectly valid with no downside whatsoever. I have my doubts, but hey—what do I know? And, of course, I never said otherwise.

Here again, Todd responds: “The part of my letter about my having brought a case that I knew to be without merit concerns, as that part makes clear, only the issue regarding your claim that I did not allege that the call was unwanted by my mother. He later rejoined: “you claimed that I did not allege that the calls had been unwanted by my mother, which, in the context of the Complaint, meant that, perhaps, she had consented to the calls. See the last paragraph on page 1 of my June 1 letter”

Get it? If so, please call me and explain it to me. Just kidding. Don’t do that. (Also Todd responds to this as well saying: “surely, you can’t be serious in claiming that you don’t understand my point.”)

Tedious.

Anyway, this is all the boring part. Here’s where it gets (sort of) fun. Check this out:

Your article states: “[r]epeat TCPA player Todd Bank was hanging out at his mom’s house on a blistering hot Friday afternoon in New York back in August, 2019.” It was helpful of you to include a link to the weather report on the date of the call, as I had not recalled such a detail. However, there is nothing that either I, nor the court, asserted that supports your statement that I had been “hanging out at [my] mom’s house.” You have no idea if that was true, right? You just thought it sounded cute or clever, didn’t you? For all you know, I had arrived at my mother’s home to drop something off. For all you know, I was standing outside my mother’s home when I heard the telephone ring. For all you know, my mother brought the telephone outside to me and I never even entered her home that day.

He’s got me there folks. I did think it sounded cute or clever. Not really sure which, but definitely one of those two.

He’s also right that he may have just arrived at his mother’s home to drop something off. Or he could have been standing outside his mother’s home when he heard the telephone ring. For all I know, his mother brought the telephone outside to him and he never even entered her home that day (which would have been really weird.) Any of that is possible. And any of that would make the case even more absurd, in my opinion. So please let any of that be true.

I suppose the larger issue here is Todd’s suggestion that “hanging out” with his mother might be a defamatory statement. I didn’t mean it as an insult that he might be spending time with his mother—as opposed to unceremoniously dropping stuff off at her pad, but apparently, he took it as one. I’m not really sure what to make of that.

Here’s Todd’s response: “Some people would have a negative reaction to my having been “hanging out” with my mother. Regardless of what you or I might think of that, you are surely aware of that, right? Your cute and clever writing comes across as low-grade and immature and (not to say that writing in an immature manner is necessarily defamatory, of course).” He later added: “your point is well taken, so I will clarify: I simply don’t like your guesswork, that’s all. I don’t care what someone thinks of my hanging out with my mom.”

So, the issue isn’t that I defamed him so much as that my writing is low-grade and immature. I can see how those concepts can get confused in someone’s mind. Todd responds to this as well: “Yes, I think you try to[o sic] hard to be cute; one can be clever and entertaining without being cutesy, as some of your article shows.”

I think that was almost a compliment.

Moving on, the next paragraph of the letter invites a critical discussion of the difference between the word “unknown” and the word “unclear”:

Your article states: “[i]t is unclear whether Bank ever told his mother about the phone call or his intention to sue GoHealth for receiving a call intended for her.” The word “unclear” means that there were inconsistent indications regarding an issue, or that something regarding an issue was difficult to understand. However, as there is nothing in any of the case filings that indicates anything regarding whether I had “ever told [my] mother about the phone call or [my] intention to sue GoHealth,” nor anything that could cause confusion regarding these matters, you could have said something like “there is no indication in the record as to whether Bank ever told his mother about the phone call or his intention to sue GoHealth.” I will, however, assume that you were just careless and that you used the word “unclear” to mean “unknown.” I do so not out of respect for you, but out of respect for the First Amendment.

So the issue is that I said it was “unclear” whether he told his mother about the phone call or his intention to sue GoHealth when I should have said it was “unknown.” He’s willing to drop that high charge out of respect for the First Amendment—which it appreciates—but not out of respect for me, which I’m fine with too. Notably, his letter still does not address whether or not he informed his mother of the phone call or his intention to sue GoHealth.

Todd responds that there’s nothing notable for me to note here but I can still note it if I want: “There is nothing ‘notable’ about my letter’s not having ‘address[ed] whether or not [I] informed [my] mother of the phone call or [my] intention to sue GoHealth.’ I was addressing your article based on what it says; nothing more. You did not claim that I did not, in fact, inform my mother of the phone call or my intention to sue GoHealth, so I had no need to address that question. To be sure, you are free to say that the omission in my letter is ‘notable,’ as that is a matter of opinion.”

Useful.

Next he tells us, well me and by extension “us”:

Your statement that “the Plaintiff answered a call that was plainly intended for his mother on a phone line that belonged to his mother,” your statement that the “call [was] intended for her,” and your statement that “his mother [was] the party to whom the call was addressed,” suggest that the caller knew that it was calling to speak to my mother, but you do not refer to any evidence that the caller was even aware of my mother’s existence (either by name or any characteristic, such as age, sex, etc.) or knew that the telephone number that was dialed belonged to my mother or, again, to anyone with any particular characteristic… Perhaps you missed the following part of the R & R: “Bank argues that the prerecorded voice did not indicate a desire to speak to anyone in particular and even when the first live person came on the phone, that person did not ask to speak to Bank’s mother.” R & R at 19. Perhaps you also missed my allegation that the prerecorded voice “never gave any indication that it, nor any person associated with it, had any idea who [I] was, nor that [I] was the person who answered the call,” Second Am. Compl., ¶ 32, and “never gave indication that it, nor any person associated with it, had wished to speak to any person in particular.” Id., ¶ 33. Likewise, there was neither any allegation, nor any evidence, that either the prerecorded voice nor any live person asked for my mother. Indeed, neither the voice nor any live person even alluded to her, but, to the contrary, the Second Amended Complaint alleges, with evidence provided therein, that the person with whom I spoke was happy to do business with me even though I identified myself as someone with a last name that did not match my mother’s last name. See id., ¶¶ 37-63.

The thrust here is that Todd takes issue with my assertion that the call was intended for his mother just because, you know, it was directed to his mother’s phone number. Todd would like me to remind everyone that no one on the prerecorded call actually asked for his mother that day so, hey, maybe the call was intended for someone else. As Todd points out, the person he talked to apparently seemed happy to chat with him so… infer whatever you will from that. He also notes: “you don’t know if the call was intended for anyone (and, realistically, it probably was not.)”

But, alas, Todd actually does have one valid point. And here it is:

Your article states: “[o]n the plus side, however, Plaintiff was forced to provide a supplemental declaration—relied on to some degree by the court—to the effect 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.” As you surely know, I was not “forced to provide a supplemental declaration.

Oddly—at least I find it odd—Todd is actually mostly correct on this. Todd merely asserted in his opposition papers that he spent 1/3 of his time at his mother’s house. And the Court oddly credited that assertion—made without evidence—in considering the merits of the motion. So whereas I assumed Todd had submitted a declaration supplementing the record because, you know, that’s how it's supposed to work, Todd is actually correct that did not submit a declaration at all. And, for the sake of accuracy, I shouldn’t have suggested otherwise. Of course, nothing about that statement is defamatory but—owing to the solemn responsibilities of the avocation— when a blogger is wrong on the facts he has a duty to the public to come clean and say as much. And so I have.

Todd responds: “It was, indeed, defamatory, because it gave the impression that the court had expressed some sort of doubt, or even distrust, about me and therefore required me to submit a supplemental declaration.”

One last thing– Todd also doesn’t like the assertion that I say he was “forced” to supplement the record with an articulation of how much time he spent at his mother’s house. The procedural posture suggests that he felt it was necessary to submit the brief in order to sustain his claim. Some—including me—might characterize that as being “forced” to submit a brief so as not to be, you know, kicked out of court. But let me clarify that Todd chose of his own free will and with no compulsion whatsoever to provide a brief explaining how much time he spent at his mother’s house.

So to summarize:

  1. Todd alleged that no one consented to receive the call, which presumably included his mother. I never said otherwise—but Todd insists that I did– but to the extent anyone was confused, now you’re not.

  2. I have no idea whether Todd was really “hanging out” with his mother. He might have just been “chillin” or “poppin in” or camped outside. The phone might even have been delivered to him by his mother as he minded a lemonade stand in her front yard—presumably along with a ham sandwich and a diet coke—I simply have no idea.

  3. Todd disagrees that the call was intended for his mother and, that’s fine (although he later clarified that the call might have been intended for his mother after all, which made the whole fight over who the call was intended for time well spent: “[I did not say that; I said that the evidence indicates that it more likely than not that the call was not intended for my mother. For all I know, it was intended for her”]– Now you know why. Other than the content of the public record I have no knowledge either way.

  4. Todd did not actually submit a declaration supplementing the record—my article was inaccurate in that respect. And he was not “forced” to file a brief explaining how much time he spent at his mother’s house in a “gun to his head” sort of way he was only “forced” to do so in the “if I don’t I might lose” sort of way.

  5. Todd thinks my blogs are low-grade and immature, which is very meaningful to me.

One final note, I offered to never blog about the guy again. His response: “Assuming, for sake of discussion, that I do not like your blogs, I nevertheless do not wish to force you to stop blogging about me.” To do—in his words—“seems very punitive and un-American to me.”

I really should get hazard pay (or, any pay) for running this blog.

God bless TCPAWorld and all who dwell therein.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 237
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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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