TCPA Quick Hitter: Shelton Strikes Again—Court Refuses to Dismiss Suit Against Repeat TCPA Litigant

I love bragging about my big win in Stoops. There the Plaintiff bought 35 cell phones (it was actually more like 85) for the specific purpose of attracting wrong number phone calls and suing callers under the TCPA. She testified that manufacturing these lawsuits was her “business.” The Court dismissed the case—the first Article III dismissal of a TCPA case following Spokeo—on a lack of Article III and prudential standing.

In the years since Stoops many have tried to make the same argument against TCPA repeat players but most have failed. The simple reason is that Stoops was decided following  a deposition in which the Plaintiff–who presents as a very nice lady in person– had admitted she subjectively desired the calls and purchased her phones expressly for the purpose of collecting those calls. Yet many Defendants rush to raise the standing argument without first obtaining the needed intent evidence.

The latest  example is in Shelton v. Direct Energy, Case No. 1:19CV0081, 2019 U.S. Dist. LEXIS 150559 (E.D. Oh. Aug. 27, 2019) where JES—as we call him here in TCPAWorld—was permitted to pursue yet another TCPA action by a district court that found his status as a repeat-player did not deprive him of standing. The Court distinguished Stoops on the fact and found that Defendant presented no evidence that JES owned more than one phone. And, in the Court’s view, “the fact that Shelton has filed other TCPA suits does not deprive him of standing, nor does that fact bar this suit.”

Notably a number of recent cases have likewise concluded that repeat-player status does not deprive class litigants of adequacy to represent a class.

At bottom, we know how incredibly frustrating it can be to deal with these repeat-players. The key is not to merely lob the fact that the Plaintiff has filed many lawsuits at the Court, however. More must be shown. But by carefully pursuing the evidence with a view toward establishing intent manufactured lawsuits can yet be dealt with.

Always happy to chat.

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