DOUBLE STRIKE OUT: No. 7 Is Making it Look TOO Easy As a TCPA Defendant Loses Six Straight Arguments

As I often remind folks, I literally created to help educate and organize the defense bar to be more effective in defending TCPA cases. The goal was to neutralize bad arguments through greater awareness and education so my defense brethren would stop creating bad case law and help me start turning the tide against abusive lawsuits.

I’ve really dedicated a lot of time and resources into helping others with this blog–at absolutely no cost to anyone. Yet three years in, we still have a long way to go.

Take Moore v. Pro Custom Solar Llc, 21 C 4395, 2022 U.S. Dist. LEXIS 67347 (N.D. Ill.  April 12, 2022) for example.

There it was (apparently) alleged that the Plaintiff received seven identical calls. On the seventh call he was able to identify that the caller was the Defendant. The call promoted the Defendant’s business and lead to an appointment to discuss solar panels.

Despite these (apparently) clear cut allegations the Defendant moved to dismiss arguing that not enough was alleged to state a claim. The Defendant raised six arguments. It lost all six.

First, the Defendant argued that the Plaintiff had not sufficiently stated facts showing all 7 calls came from the same caller. But, as the Court pointed out, the Complaint referred to the calls as identical and following the same script. Plus the Plaintiff alleged they came from the same party. So.. yeah, that’s sufficient.

Second, Defendant argued that the Plaintiff did not allege sufficient facts to show the Defendant was vicariously liable for the calls. But since the complaint alleged the Defendant directly made the calls no such allegations were needed.

Third, Defendant argued that the calls were not illegal because they were consented to. But since the challenge was made as a motion to dismiss and the complaint alleged the calls were made without consent, there was no grounds to grant the motion on this basis.

Pretty easy three pitch strikeout. None of that was even close.

But we have a few more swings to account for.

Fourth, Defendant argued that the calls were not solicitations. But since the Complaint alleged “specifically that his caller was advertising solar services and the caller offered to him an in-home appointment for Momentum’s services” they were pretty clearly solicitations. Strike four.

Fifth, Defendant argued there is no private right of action to enforce the TCPA CFR’s internal do not call list rules. This, at least, is a close call. But–probably in light of all the other arguments the Court had to slice through that weren’t close calls– the Court decided to find a cause of action does exist. Eesh. (And strike five).

Sixth, and finally, Defendant argued that the mere allegation that Plaintiff asked for, but did not receive a copy, of the Defendant’s internal DNC policy was insufficient basis for Plaintiff to allege that Defendant lacked such a policy. (The old, “sure I refused to give it to you but that doesn’t mean I don’t have one” defense.) The Court was unimpressed. Indeed, focusing the Court on the allegations of bad conduct here, probably wasn’t the best move:

Moore not only asked to be placed on Momentum Solar’s internal do-not-call list, he received written notice that his request was received and granted. Moore also asked for a copy of Momentum’s do-not-call policy but did not receive one. He then continued to receive calls. These allegations support the reasonable conclusion that either Momentum’s staff were not properly trained in distributing and implementing the do not-call policy, or Momentum did not have a written policy to distribute. Both actions are independently violations of Section 64.1200(d).

So you see what strike six did? Not only was it an impressive double strike out in one motion–which you rarely see–it actually opened the door to two separate violations. So not only did the Court find that the Plaintiff had stated a claim, it actually found that the Plaintiff stated two claims.

Two strike outs. An extra claim handed to the Plaintiff. I’m shaking my head.

Some basic rules in attacking a complaint folks:

  1. Don’t raise consent at the pleadings stage on a frontal attack. You might be able to raise it on a standing challenge, but never on a 12(b)(6) (unless Plaintiff somehow alleges consent);
  2. Don’t waste your time challenging vicarious liability when allegations of direct liability are made;
  3. Don’t ask the court to assume that allegedly scripted calls didn’t all come from the same party;
  4. Really don’t argue that solicitation calls are (somehow) not solicitation calls;
  5. Produce your internal DNC policy upon request. If you elect not to, don’t expect the court to credit your assertion that you have one–at least not at the pleadings stage.

I feel like I shouldn’t have to say any of this but… yeah.

One wonders if the critically important private right of action argument might have come back differently if the other arguments had been omitted. Who’s to say.

I have this to say (with love): Do better TCPAWorld. And call me with Q’s.

BTW this was Avi Kaufman’s case. (He goes by no. 7 now.)



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