The Case of the Guy Answering His Mother’s Phone Was Just Dismissed—But its Not All Good News

1 Comment

So you might recall a while back I was in a tizzy because a repeat TCPA litigator was permitted to file suit over calls made to his mother’s phone.

The case was dismissed by the magistrate judge assigned to the case owing to a lack of allegation around vicarious liability—but not before the Court found Plaintiff had standing to sue for calls made to a phone line he didn’t subscribe to in a house where he didn’t live that were intended for somebody else.

Bleh.

Anyway the Plaintiff objected to the ruling and asked for leave to amend. The Defendant argued that leave to amend would be futile since the Magistrate Judge got it wrong on standing.

Ultimately the district court refused to grant leave to amend—meaning the case is dismissed forever—but backed a pickup truck over Defendant’s standing arguments before it did.

Specifically in Bank v. Gohealth, 19-CV-5459 (MKB) (CLP), 2021 U.S. Dist. LEXIS 89871 (E.D.N.Y.  May 11, 2021) the district court held that Bank—a repeat TCPA litigator—had both Article III and prudential standing to bring the case. The Article III standing analysis is pretty straightforward—receipt of an unwanted call can cause harm (although it is weird that he can be harmed by a call he to someone else.) And the prudential standing analysis essentially turned on questions of fact—the court could not definitively say Plaintiff was not a “regular user” of his mom’s phone at the pleadings stage. Plus just because he files a bunch of lawsuits does not mean he meets the Stoops threshold of encouraging such suits.

Interestingly, the Court finds that only “called partys” have prudential standing to bring TCPA suits, which is about as dead a doctrine as exists in TCPAWorld. But everything seems to live on around here. Don’t get confused, however–very few cases view “called party” status as a standing issue. Most view “called party” as solely a question for assessing the individual who needs to provide consent.

Happy to discuss.

 

Categories:

Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

1 Comment

  1. Laws and regulations should be be easy for the lay person to understand. These TCPA attorney’s turn everything into pretzels. This is why a sound strategy is to avoid TCPA litigation as much as possible.

    Reply

Leave a Reply