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TCPA Quick Hitter: Summary Judgment Entered in Favor of Defendant Where Plaintiff Lacked Proof of Calls

Sometimes the easiest answer is the right one—even in TCPAWorld.

What’s the best defense to a TCPA claim? How about that you never called the Plaintiff to begin with.

That was the angle taken by the Defendant in Robinson v. Acg Processing, Civil Action No. 17-cv-02725-MSK-STV, 2019 U.S. Dist. LEXIS 124213 (D. Colo. July 25, 2019) and it prevailed– even though the Plaintiff submitted a declaration to the contrary.

In broad strokes: although Plaintiff contended the Defendant called him he had to admit at deposition that his cell phone records did not confirm that contention and nobody actually identified themselves as an agent of the Defendant in the phone calls.  Plaintiff countered that the reason he has no record of calls from the Defendant was because of the use of spoofing technology but he lacked any direct evidence that was the case. So he came forward with nothing but speculation—no evidence. This was not good enough to survive summary judgment. As the court put it:

“Mr. Robinson offers no evidence in support of his claims and merely makes self-serving statements that are conclusory and indeed, refuted by the evidence. Such bare assertions are insufficient to raise a genuine issue of material fact in order to avoid entry of summary judgment.”

So there you have it TCPAWorld, although TCPA cases remain some of the most complex and intricate pieces of litigation out there, one must never lose sight of the simple stuff– like Plaintiff having the burden of introducing evidence that calls were actually made by the Defendant to begin with.

Mere speculation or “self-serving” declarations (aren’t all declarations self-serving?) are not sufficient where the records tell a different tale.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 212


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...