Well folks, my beautiful win in Stoops just keeps getting misused and distinguished. And that’s bad news for all of us.
The latest example is particularly painful because it involved two notorious TCPA repeat players—Craig Cunningham and Andrew Perrong— adding another feather to their already well-adorned caps. And adding salt to the wound, the Defendant’s critical position on the absence of a cause of action under CFR 64.1200(d) was rejected for the first time in Utah. Trainwreck.
For any who don’t already know the back story, Stoops was one of my biggest and most famous TCPA victories. In that case the Plaintiff had purchased dozens of cell phones for the express purpose of netting wrong number calls intended for the former subscriber. She specifically selected area codes in Florida—which was undergoing a severe economic downturn at the time—and took careful notes of all calls she received on her cell phone. At deposition she testified that she was actually hoping to receive calls intended for others because filing TCPA lawsuits was her “business.”
Rather than lay down and settle the case, the Defendant in that case retained me to take down this racket—which I did with pleasure. Arguing that a Plaintiff lacks both statutory and constitutional standing where they affirmatively desire the receipt of calls, we convinced the Court to enter judgment in favor of my client—earning both the first Article III dismissal of a TCPA case following Spokeo in the nation, as well as the first dismissal of a TCPA case for want of prudential standing in a suit involving manufactured lawsuits.
Stoops should have been the death knell for manufactured TCPA cases of all shapes and sizes—anytime an inference can be raised that a consumer wanted the calls he/she then sued for a dismissal should be in the cards. But defendants have repeatedly overlooked the subjective element of the defense—presumably because that requires the hard work of discovery and depositions— and have often argued that merely volume of lawsuits is sufficient to demonstrate a lack of standing. But courts (rather properly) reject the application of Stoops in this context—merely filing a bunch of lawsuits does not mean that someone wanted the phone calls at issue. And over time my wonderful victory in Stoops has been relegated to one of the most oft-distinguished decisions in TCPAWorld. Just awful.
The latest entry into the volume of decisions distinguishing Stoops is Barrett v. Vivint, Inc., Case No. 2:19-cv-00568-DBB-CMR, 2020 U.S. Dist. LEXIS 89055 (D. Ut. May 20, 2020). There the Defendant filed a motion to dismiss—i.e. a non-evidentiary pleadings-stage motion—arguing that the Plaintiffs lacked prudential and Article III standing despite allegations of receipt of multiple unwanted calls between them. The essence of the argument was that since the Plaintiffs had more than 25 phone numbers between them—a pretty interesting fact—the Plaintiffs could not sue under the TCPA for unwanted phone calls. But that’s not the law.
In analyzing the issue the Court made short work of the standing arguments finding that the Plaintiffs alleged that they “didn’t want these calls” and were “not seeking out these calls.” Plaintiffs further contended that “there is simply nothing here to support the characterization that they are ‘operating TCPA litigation businesses'” and that “the numbers are used for residential purposes only . . .” So motion to dismiss denied and Stoops distinguished yet again. Plus Cunningham and Perrong earn one more victory advancing their high-volume TCPA ambitions. (Maybe Defendant will have better luck at the MSJ stage if they can develop evidence that the reason Plaintiffs had all those cell phones was to enable all those fun TCPA suits they like to bring.)
Setting aside the standing loss, there is a critical substantive blow for Defendants in here as well. One of the most hotly contested issues in TCPAWorld—ok, along with all the other hotly contested issues— is whether 64.1200(d) mandating that telemarketers maintain internal DNC list policies and training is promulgated under 227(c) (containing a private right of action) or 227(d) (lacking a private right of action.) While the answer should rather obviously be 227(d)—64.1200(d) contains technical and procedural standards for TCPA compliance—the Court determined that 227(c) afforded the needed promulgation authorization. That means these crafty repeat-players can sue for violations of the internal DNC policy after all. And although the Eleventh Circuit Court of Appeals has held that class members that did not affirmatively request that calls stop cannot assert a cause of action under 64.1200(d)—now there’s a standing argument that works—this issue was not discussed (raised?) in Barrett. Eesh.
Take aways are clear here folks: raise your standing arguments at the right time and with the proper evidentiary context. Always happy to discuss if you have questions or are just learning the ropes.
Happy Memorial Day TCPAWorld.
Editor’s Note: Plaintiff’s counsel in this case was Anthony Paronich who joined Unprecedented this last week for a podcast recording.You’ll want to look out for that interview as repeat-player lawsuits was one of the numerous topics we discussed.