Editor’s note: We will occasionally re-publish interesting TCPA related articles here from across the country with permission from the author. This article ran in the Pennsylvania Record today. Enjoy.
PHILADELPHIA – The Telephone Consumer Protection Act: Enacted in 1991, its purpose is to protect the public from unwanted telemarketing calls. However, for some professional plaintiffs, it has also proven to be a source of serial litigation generating settlement payoffs.
In New Jersey, a man made more than $800,000 suing those who called him. In Pennsylvania, a woman admitted to hoarding more than 30 phones in a shoebox to sue anyone who called them looking for the previous owner of their numbers.
Since 2016, a King of Prussia man named James Everett Shelton has filed 29 cases in courts around the country, mostly representing himself, alleging he has been the target of numerous unwanted telephone solicitations from a variety of businesses.
In 18 of them, he has received either a settlement or default judgment, three were withdrawn or voluntarily dismissed by Shelton himself and eight remain pending. All in all, Shelton has been awarded $100,000 in default and stipulated judgments (though collecting default judgments can be difficult), and he’s also reached several confidential settlements.
After a trial this week, it looks like he’s headed for another payday.
Monday through Wednesday, in Philadelphia federal court, Shelton was pitted against Fast Advance Funding, LLC, a New York-based lending firm which offers loans to businesses. Shelton claims that even after registering his cell phone number onto a national “Do Not Call” list in June 2015, he began receiving calls from Fast Advance at his number in March 2018, and it continued through April and May of that year.
The TCPA provides damages in the amount of $500 per phone call, or $1,500 per call for more egregious violations. He’s seeking more than $43,000 in the case against Fast Advance.
TCPA trials are rare. Defendants often choose to settle rather than risk an adverse trial verdict – particularly when the plaintiff files a class action.
“Plaintiff was harmed by these calls. Plaintiff was temporarily deprived of legitimate use of his phone because the phone line was tied up during the telemarketing calls, and his privacy was improperly invaded,” Shelton’s lawsuit said.
“Moreover, these calls injured plaintiff because they were frustrating, obnoxious, annoying, were a nuisance and disturbed the solitude of plaintiff. The calls caused plaintiff’s cell phone battery’s depletion, used up cellular data, and prevented plaintiff from otherwise using his telephone for lawful purposes.”
In court on Wednesday, the case came before U.S. District Court Judge Chad F. Kenney, who spoke to the issue of standing to bring suit and found Shelton to possess it, while also chiding Fast Advance for not “engaging” in the litigation or its discovery process.
“Anyone that ignores requests for admissions does so at their own expense. These requests for admissions were filed Feb. 19 and they were not answered by March 19. I don’t see the defense engaging at all,” Kenney said.
An issue of dispute between counsel for Shelton and Fast Advance was the nature and purpose of the plaintiff’s telephone line: His attorney Bryan Reo argued that it was a personal cell phone number, while defense counsel John P. Hartley countered that it was used for a debt collection business Shelton operates called “Final Verdict Solutions” – and thus, wouldn’t fall under the auspices of the TCPA.
Reo stated Shelton registered the number on the Do Not Call list a full year before Final Verdict Solutions was established.
Hartley wanted to undertake discovery on that issue in furtherance of the argument of Shelton’s standing to bring the case, but Kenney stated that all such deadlines had passed and he found Shelton possessed the basis for his case to move forward.
Reo explained the Federal Communications Commission (FCC) had declined to exempt home-based businesses from the TCPA, while Hartley counter-argued that there was no evidence Final Verdict Solutions was such a residential business and if it was used for such purpose, he would have grounds to appeal the matter of standing.
“This is a last-minute attempt to throw a wrench into the works,” Reo said.
In taking Fast Advance to task, Kenney objected to its wanting to argue standing, when he said the company made motions “without substance” or having taken part in discovery. Kenney declined to impanel a jury on any remaining issues.
“It’s not you, Mr. Hartley. You are zealously representing your client with what you have today,” Kenney remarked.
Hartley reiterated that he did not believe the Do Not Call list or TCPA applied to phones used for a commercial purpose.
After a brief recess, Kenney returned from chambers and declared his intention to write an opinion and verdict in the case, which would take some time to complete. In the meantime, the judge encouraged both sides to discuss a resolution to the case.
“Either way, you’ll have a published opinion,” Kenney said.
It’s been a busy few weeks for Shelton, who received judicial orders in two of his other cases in April. The main issue is standing, as defendants cite the decision in the case of Melody Stoops.
Stoops, in Pittsburgh federal court, admitted she bought more than 30 phones to assign Florida area codes to in the hopes that debt collectors would call them to reach the previous owner of the number.
The judge in that case ruled she didn’t have standing to sue as she was not harmed – she sought those calls, and those calls happened.
In Shelton’s case filed in Philadelphia federal court against Target Advance, LLC, U.S. District Court Judge Nitza I. Quiñones Alejandro ruled on April 16 that his claims made under the TCPA’s “Sales Call/DNC” prohibition were dismissed due to lack of standing. A motion for reconsideration of that decision is currently pending.
Two weeks earlier, Shelton received a favorable ruling that allowed another of his cases to proceed past the standing argument.
Among the notable judgments Shelton has received are $6,000 and $12,000 default judgments that have been satisfied, as well as a stipulated judgment of $21,430 in a Philadelphia case against Merchant Source Inc. and two individuals.
Also, following a default judgment of $37,000, Shelton settled for a confidential amount with Green Star Capital Solutions in a Montgomey County case.