The TCPAWorld remains a dangerous place for folks trying to communicate with their customers using text messages. This is true even in an era when P2P texting is finding increasing favor as a preferred contact channel.
In Greiner v. Cadillac Accounts Receivable Mgmt., Case No. 2:19-cv-12479, 2020 U.S. Dist. LEXIS 234221 (E.D. Mich. November 9, 2020) for instance a Defendant was just denied summary judgment—i.e. the case is headed to a jury—in a case where the Defendant claimed it sent the texts at issue manually.
The Defendant submitted three, apparently conclusory, declarations from witnesses purporting that the texts at issue—debt collection messages—were sent manually. However the declarations did not explain what “manual” meant and, apparently, just declared the messages went manually and stopped. The Court reasoned that the assertion of manual texting in this context was merely a legal conclusion and rejected the evidence outright. So Defendant loses.
It is unclear whether Defendant would have won the case had it introduced proper evidence but… probably.
Adding salt to the wound here—this case started off as a small claims matter. The Defendant removed it to federal court—spent time and money to bring a summary judgment motion.
To a pro per.
Greiner has a couple of take aways. One, defense lawyers need to submit proper evidence. And its quality, not quantity. These folks submitted three declarations, but none of them addressed the heart of the issue—what does “manual” mean? They probably could have won the case with a single, properly worded and supported, declaration. Second, the risk remains high in cases involving text messages. Even though the messages were sent “manually” and were plainly targeted to collect a debt—i.e. likely tailored to specific consumers and not mass blasted—the court still sent the issue to a jury to decide. The risk remains real folks. Be cautious and seek consent.