July 15, 2020

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TCPA News In Brief: Ringless Voicemail Defendant Keeps Up the Pressure With Motion to Strike Plaintiff’s Expert Report

As we reported last week, the TCPA ringless voicemail Defendant involved in the big Saunders suit has gone on the offensive and moved for summary judgment in the suit. If the motion were to be granted it would be a remarkable turn around from last July when the Court issued a stunning ruling concluding VoApp’s DirectDrop product delivered a “call” for TCPA purposes.

Well on Friday the Defendant upped the ante further–moving to strike the report of Plaintiff’s expert to the effect that ringless voicemails trigger TCPA coverage. The motion can be found here: Motion to Strike

The motion raises several grounds assailing the Plaintiff’s expert, but the primary attack is a very basic one– the expert never performed an evaluation of the DirectDrop ringless voicemail platform to begin with! While it is remarkable to consider that Plaintiff’s expert is offering an opinion regarding the operation of the platform contrary to a declaration of the inventor of the technology–David King–the fact that the expert offers that opinion without reviewing the platform from a technical perspective is, well, weird. And as the motion points out, this is not the first time this expert has been dinged for failing to review technology before offering an expert opinion–the motion lists five instances of “criticisms” from federal judges regarding this expert engaging in this precise practice. Yikes.

The motion also challenges that the expert “offers testimony that is not helpful as it is designed to inject his own personal experiences and beliefs into the case” and that his report otherwise lacks a reliable methodology.

We’ll let you know how this turns out, but the VoApps team is really swinging for the fences now.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 329


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...