DOUBLE-EDGED SWORD: Call Recording Sinks TCPA Defendant’s Claim of Consent

Call recordings are incredibly powerful evidence in the battle against repeat player litigants.

Very recently I had a case where the Plaintiff alleged calls were unsolicited. But when you listened to the first call recording he very plainly expressed interest in a lending product before cutting the call short, presumably specifically to manufacture future calls.

The call recording was dynamite evidence that helped resolve the case.

But call recordings can cut against you as well–especially when a Defendant is making an argument that is not supported by the evidence.

In Bennet v Veterans Aid Pac, Inc. 2022 WL 1632553 (E.D. Tex. May 23, 2022) the Defendant argued that the Plaintiff had consented to receive the calls at issue. But the Court listened to the call recordings and disagreed:

“Bennett can be heard asking for any further information to be mailed to her, and she provides the caller with her physical address. Bennett never indicates her assent to receive further phone calls, nor any interest in donating again. Bennett’s phone records also show she only received phone calls from the VA’s call center. All in all, Bennett has carried her burden to show the lack of evidence regarding her prior express consent.

As such the Court granted summary judgment IN FAVOR OF PLAINTIFF on the issue of consent.

Interesting, no?

On the other hand, the Court refused to grant Plaintiff’s motion on the issue of whether a prerecorded call was used, despite reviewing the recording:

The Court has reviewed these recordings and notes their awkward, choppy quality—the calls did not have the natural flow of human conversation. In addition, the caller asks Bennett to respond to prompts with specific answers so that the caller could redirect Bennett accordingly, much like selecting a number on a cellphone’s keypad to redirect the call. [In response…] the VA cites a potential language barrier as the reason for any awkwardness or choppiness. While the Court suspects the calls were likely made using a pre-recorded voice, the Court must refrain from making any credibility determinations or weighing the evidence. Because a reasonable jury could find the calls were made without using a pre-recorded voice, the Court denies Bennett’s request for summary judgment on liability. 

So the caller narrowly avoids being rung up for using a prerecorded call at the MSJ phase. But notice–the Defendant is telling the Court the calls were not prerecorded and were the result of a language barrier. I suspect they were avatar calls–but I don’t know that.

If it turns out that the Defendant was hiding the ball here or misleading the Court–not saying that’s what happened, but if it did–it could be in big trouble when the facts eventually come to light.

In any event, take aways here are clear and obvious:

  1. Call recordings are great evidence. But they can sometimes hurt you.
  2. Don’t make arguments in Court that the call recordings don’t support. That can really hurt you.

Unrelated, did you know Big Law profits were up 20% last year? 20%!  That’s crazy. Time to make the switch folks.


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