Every once in a while a defense lawyer has to bring an argument she or he knows will not fly, but the client is simply insistent on bringing it. (I under to run into that back in my younger days…)

I’m not saying it is unethical or frivolous, I’m just saying the lawyer knows there’s about a 2% chance it will work. But you’re stuck bringing the argument anyway…

I’m assuming that’s how the defense lawyers in Stanton v. Cash Advance Ctrs., Case No. 21-CV-00285-SRB, 2022 U.S. Dist. LEXIS 32812 (W.D. Mo.  February 23, 2022) felt.

There the defendant brought a motion to compel arbitration based upon a contract with the called party that terminated ten years before the calls at issue.

Making the motion even weaker–the calls the defendant were making were for a different debtor. So the calls were entirely unrelated to the underlying agreement with the called party.

While I’ve seen the “we just happened to have an arbitration agreement with the random guy we called by accident” argument work, I’ve never seen it work ten years after the contract with the called party terminated. And it didn’t work in Stanton.

The Court had little trouble concluding that the calls at issue did not arise out of the agreement containing the arbitration provision and that the case could proceed. The class action waiver was also rejected on the same basis.

This is a bit of an oddball case. TCPA cases remain subject to arbitration in most instances and companies should consider using such clauses–complete with class action waivers–to avoid the need to defend expensive (often frivolous) class action lawsuits.

But don’t expect such a clause to save you from wrong number call litigation ten years later…