STRIKE OUT: TCPA Defendant Swings and Misses Thrice in an Effort to Dismiss a Complaint

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While I much prefer spreading good news for TCPA defendants on my blog, spreading bad news can sometimes be more educational. One can learn quite a bit from missteps–cautionary tales and all that–especially where the resulting case law isn’t terrible, just unhelpful.

In Miholich v. Senior Life Ins. Co., Case No.: 21-cv-1123-WQH-AGS, 2022 U.S. Dist. LEXIS 23981 (S.D. Cal. February 10, 2022) the Defendant brought a series of arguments seeking to dismiss a TCPA class action brought by the Godfather himself. It did not go well.

First, the Defendant argued that the Plaintiff lacked standing to sue because he used his number for business purposes. This argument virtually never finds pay dirt at the pleadings stage–the Court is bound to accept allegations as true–but since the Defendant tried to raise the issue from a standing perspective the Court allowed evidence on the issue. But the Defendant still lost–unsurprisingly–since use of a cellular phone for residential purposes is very often a question of fact. The Court determined that Plaintiff’s declaration that he used the phone as his residential number was sufficient to allow the case to proceed to discovery. (And this issue is now likely dead for purposes of MSJ as well so…not good.)

Strike one.

Next, Defendant argued that the text were not “fairly traceable” to its conduct, which is sort of a limp way of arguing “we didn’t’ send the messages” without fully proving it. But the Court was unimpressed and found “the content of the text messages in this case allegedly advertising financed leads and linking to Defendant’s webinar making similar offers—supports an inference that Defendant sent the text messages to Plaintiff.”

So…strike two.

Finally, the Defendant argued that the texts were not marketing messages because they didn’t actually offer to sell the Plaintiff anything. While the Court correctly found that offers to purchase goods or offers to employ someone are NOT marketing messages, the Court just disagreed with the Defendant on how to characterize the messages. The texts at issue advertised a webinar which, although free, was itself allegedly for the purpose “to offer goods in the form of quality life insurance leads to prospective contractors.” Since the free webinar served multiple purposes–one of which being marketing produces for sale–the texts were deemed to be marketing in nature.

Strike three. Motion denied.

Miholich is a pretty straight forward case and none of these rulings are surprising. Defendants should not expect to escape a case leveraging the “residential” argument at the pleadings stage-at least not where allegations establishing personal use of the phone are present in the Complaint. Similarly, extracting yourself from a case on vicarious liability grounds likely isn’t going to fly when the link in a text traces back to your products. And dual purpose calls remain a huge problem for TCPA defendants–anytime a Complaint can convincingly demonstrate a link between a call/text and a product being sold the claim is going to survive the pleadings stage.

While you might prevail on some of these arguments in a suit against a pro per–pick your spots like Navient did. Going against a guy like Abbas, you’re not going to win on these iffy sorts of arguments.

Stay smart TCPAWorld–and no more strike outs!

 

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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.

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