December 9, 2019

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TCPA Quick Hitter: No You Can’t Attach a Consent Disclosure to an Answer and then Move For Judgment on the Pleadings

It can be frustrating to be a TCPA defendant. Many times there is clear evidence of consent—or the absence of any calls—but the Plaintiff persists in pursuing a case. Sure you can, and should, pursue Rule 11 sanctions if a case is truly meritless, but Courts have shown a disinclination toward granting such sanctions in TCPA suits recently. And while a counterclaim for fraud is a great vehicle where the claim is truly manufactured, disputes about the authenticity of evidence are rarely going to be resolvable at the pleadings stage, leaving a Defendant to linger for months or sometimes years in a meritless suit.

One Defendant recently attempted to get clever and attach a key disclosure to their answer and then move for judgment on the pleadings. Nice try, but too clever by half.

In  Williams v. Sterling Jewelers, Case No. 1:19-cv-70, 2019 U.S. Dist. LEXIS 188276 (S.D. Oh.  Oct. 30, 2019) the Defendant was sued for purportedly calling a Plaintiff with whom it had no business relationship and also continuing to call after being asked to stop. The Defendant took the unusual step of attaching a contract with the consumer as ‘Exhibit A” to its answer. It then filed a Rule 12(c) motion asking the court to resolve the issue of consent in its favor at the pleadings stage.

That was a great idea except that’s not how 12(c) motions work. A judgment on the pleadings is only capable where the pleadings conclusively demonstrate that no cause of action is possible, or no defense is present, so one party of the other is indisputably entitled to judgment. Here the complaint said “no consent” the answer said “consent” so there was no indisputable entitlement to a victory on the pleadings.

The Defendant seemed to believe that by merely denying the allegations in the complaint and attaching an agreement the allegations of the Complaint could be overcome, but that’s not the way it works at the pleadings stage. Instead the Court can only weigh evidence on a Rule 56 motion. Unsurprisingly, therefore, the Court in Williams made short work of the motion and denied it.  This was all the more appropriate since the complaint also alleged that the Plaintiff asked for calls to stop- thus revoking any consent that might have been given. Any way you slice it, therefore, this motion seemed headed for failure.

I can relate to the frustration you feel TCPAWorld Defendants, but the rules of procedure can only be stretched so far. Happy Thursday.

© Copyright 2019 Squire Patton Boggs (US) LLP

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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...

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