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Volume X, Number 269

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Standing Argument Focusing On Who Paid for the Cell Phone Fails, Again

In Vargas v. Vehicle Sols. Corp., defendant-lender argued that because the plaintiff, Ms. Vargas, did not pay for the cell phone the lender called, she lacked standing.  Like virtually every other court to consider that argument, the U.S. District Court for the Middle District of Florida rejected it.  Case No: 8:19-cv-1109-T-60AAS2020 U.S. Dist. LEXIS 141526 (M.D. Fl. August 7, 2020).

The calls here started after Ms. Vargas borrowed money from the lender to purchase her son a vehicle.  After missing payments, the lender called Ms. Vargas “hundreds” of time to try and collect the debt.  The lender called using ATDS technology and pre-recorded messages.  The lender admitted it lacked consent for the calls.  Trying to avoid TCPA liability, the lender made the (unconvincing) argument that because Ms. Vargas did not pay for the cell phone, she lacked standing to complain of the unwanted calls.

Citing cases from all over the country that already rejected that theory, the Vargas Court explained that it fails on several fronts: i) the statute says any “person” can sue—not just the “called party”; and ii) many courts have held the regular user of a cell phone has standing to bring suit where they are otherwise harmed by the calls.  The Vargas Court also distinguished Eleventh Circuit precedent that addressed the meaning of a “called party” under a different provision of the TCPA, an issue not presented by the lender’s standing argument.

Sometimes a novel argument is just different, not compelling.  The lender’s standing argument in Vargas has some superficial appeal but falls short in most cases, including this one.  Defendants facing TCPA claims should keep the lesson from Vargas in mind.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 225


About this Author

Brent Owen, Squire Patton Boggs, Denver, public lands attorney, natural resources lawyer

Brent represents clients on a range of matters, with an emphasis on complex commercial litigation, public lands and natural resources law. Brent joined Squire Patton Boggs after a two-year stint at a large regional firm. He has significant litigation experience – including second-chairing a federal jury trial on behalf of a prisoner asserting a First Amendment claim. Additionally, Brent has handled a range of appellate matters, including drafting briefs to the Colorado Court of Appeals, Colorado Supreme Court, and Tenth Circuit.

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