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Volume XII, Number 183

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TCPA TRAP: “Incontrovertible Evidence” of Consent Does Nothing to Help Defendant–Employee That Sent Texts Personally Sued

The TCPA floats like a butterfly and stings like a bee.

Here’s the stinging part.

A caller is trapped in a TCPA suit despite claiming to have “incontrovertible evidence” of consent. Apparently–according to the Defendant– the Plaintiff consented to calls but went right ahead and sued the caller anyway.

The Defendant moved to dismiss the case–citing said incontrovertible evidence–only to be reminded that “evidence” doesn’t matter at the pleadings stage of  a case. As every litigator knows, on a motion to dismiss a court looks only at the allegations of the complaint. So the caller basically just wasted its time bringing a motion that could never be granted.

Again, I know how frustrating this must sound to folks struggling to comply with the law only to be sued in a completely bogus case–if that is what happened here. But procedural rules of court are rules that must be followed. There are no end runs or exceptions-which is one of the reasons that litigation is so ridiculously expensive. (But you can make it slightly less expensive by not tying to take short cuts the rules don’t allow.)

There’s a second piece here as well. Some guy named Stone Sharp–I swear that’s his actual name–is personally sued in the case. Apparently Sharp, Stone was the employee of the company who had the misfortune of being called upon to send the texts at issue. And even though he was apparently just following orders, he is now facing a potentially life-altering TCPA judgment against him personally.

This is life in TCPAWorld folks. Send some texts at the behest of your employer, face personal financial ruin.

These employees should get hazard pay.

One other interesting wrinkle here.

The Defendants (callers) turned around and sued a lead supplier–Connected Investors, Inc.–for indemnity in the case. Apparently CIX (as it is known) provided lead information to the Defendants and warranted it was consented. Here are the allegations:

9. Cross-Claimant Easy Financial entered into a contract with CrossDefendant CIX wherein CIX would provide contact information and sales leads to CrossClaimant.

10. CIX would provide to Easy Financial contact information and sales leads
who expressed interest in being contacted for real estate investment loans.

11. CIX states on its website it is “Designed specifically to help real estate
investors connect, share resources and most importantly transact.”

12. CIX provides names, email addresses, and telephone numbers for
telemarketing purposes for clients, including Easy Financial.

13. By providing this information to clients, CIX has expressly and impliedly
stated the names, email addresses, and telephone numbers have expressly waived the
DNC restrictions.

14. Upon assurances and promises made by CIX, CIX would guarantee these
sales leads have waived the “Do Not Call” (“DNC”) list. The DNC prohibits telephone
communications with consumers who do not want to be contacted for sales calls or
telemarketing.

15. On or around May 2021, while in the course and scope of his employment,
Mr. Sharp allegedly sent two text to Plaintiff.

16. Plaintiff filed this class action complaint alleging violation of the DNC list
in alleged violation of 47 U.S.C. § 227.

CIX has answered the counterclaim denying the allegations.

We’ll keep an eye on this one.

© 2022 Troutman FirmNational Law Review, Volume XII, Number 138
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as 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. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

949-350-3663
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