I guess it still pays to be a professional in TCPAWorld. After the Czar won the day in the Stoops case a few years back—setting forth a clear path to victory defeating manufactured TCPA claims—it seemed that these sorts of lawsuits would fall by the wayside. But few have been able to walk in his footsteps and courts continue to distinguish Stoops and allow professional Plaintiff suits to proceed.
The latest example—last week in Shelton v. Nat’l Gas & Elec., LLC, CIVIL ACTION NO. 17-4063, 2019 U.S. Dist. LEXIS 59235 (E.D. Pa. April 5, 2019) a Plaintiff in Pennsylvania—the same state that Stoops was decided—was permitted to pursue a TCPA case despite operating what appears to be a professional TCPA lawsuit filing business. In fact, Plaintiff’s business webpage boasts Plaintiff’s TCPA lawsuit filings, which includes a tab for “James’ TCPA Cases,” and Plaintiff filed at least seven TCPA lawsuits in 2017. Not only that, Plaintiff’s business webpage warns telemarketers that they “are going to be sued,” and to “hire a really good lawyer.” (We know a couple of those BTW.)
Sounds familiar, doesn’t it? Defendant thought so, and sensibly brought a motion to dismiss based on, among other things, Stoops. To give you a quick reminder, in Stoops, the Czar took on a mass-filing Plaintiff who had collected over 35 cell phones for the express purpose of collecting wrong number calls to sue collectors and others under the TCPA. After doing the dirty work of conducting a careful deposition and providing extensive briefing to the court on the issue of prudential standing, the Czar’s client earned the first dismissal in the nation of a TCPA case for want of Article III standing under Spokeo. The Court also dismissed the case entirely finding that a Plaintiff that manufactures a TCPA suit lacks prudential standing and is not within the zone of interest of the statute. Stoops v. Wells Fargo Bank, N.A., 197 F.Supp.3d 782 (W.D. Pa. 2016).
But the Shelton Defendant apparently offered no comparative evidence. In addressing the standing issue the district court found a lack of evidence “that Plaintiff’s phone [wa]s used solely for business purposes or ‘specifically to drum up litigation,’” and that “it would be premature to conclude that Plaintiff’s only purpose in using his cell phone is to file lawsuits.” Tellingly, Plaintiff had specifically alleged in his complaint that he did not purchase or use the phone “for the sole purpose of bringing lawsuits under the TCPA.” What an interesting allegation. This case is noteworthy because the court restricted the applicability of Stoops and allowed a professional plaintiff to proceed with his (allegedly) manufactured TCPA lawsuit. But not all is lost though, as the court did recognize that Stoops was decided at the summary judgment stage and does not appear to completely foreclose Defendant re-raising the argument with a better developed record. So perhaps the Defendant will get a second crack.
For now, however, the professionals are still getting paid out there.