So just yesterday I lamented the downfall of the prudential standing doctrine in the Ninth Circuit following the Porch case. And wouldn’t you know it–today we have a case highlighting the issue.
I had helped create the prudential standing doctrine in the TCPA context with my MASSIVE win in Stoops vs. Wells Fargo. There it was held that an individual who purchases multiple cell phones for the purpose of collecting phone calls with the intent of filing TCA lawsuits does not fall within the “zone of interest” protected by the statute. As such their claim can be dismissed WITH prejudice and on the merits. (I.e. they can never file that claim again!)
As I discussed with Lead Generation World’s Mike Ferree on the HUGE compliance update–the Ninth Circuit just destroyed the idea of prudential standing and collapsed it into the statutory standing inquiry. And given the TCPA’s extremely broad statutory right of action essentially everyone has statutory standing.
Translation: litigators can sue and you have less power to stop them in the Ninth Circuit after the Porch case.
But that doesn’t mean you’re completely powerless, as the new case of Laccinole v. International Union of Police Associations, Case No. 21-240-JJM, 2022 WL 14812545 (D. R.I. Oct. 26, 2022) demonstrates.
In Laccinole the defendant moved for summary judgment presenting evidence that the Plaintiff maintained multiple phones seemingly for the sole purpose of pursuing TCPA claims. Below is the evidence presented in favor of the motion:
The undisputed facts are: Mr. Laccinole pays a monthly contractual fee for unlimited talk and text for a cell phone from T-Mobile. ECF No. 11-1, ¶ 3. Mr. Laccinole uses this phone for personal use, carries it with him, and gives the phone number associated with this phone to people in his life when they need to “get in touch” with him. Id., ¶ 4. He also has a work cell phone and a landline at home. Id., ¶ 5. He has not alleged that the IUPA called him on any of these phone numbers.
Mr. Laccinole testified that he presently has “at least eight” burner phones, or Tracfones, cheap disposable cell phones that use pre-paid, non-contract-based services, and has purchased “at least twelve” burner phones in the last five years. Id., ¶ 6. He buys a burner phone “if it’s cheap and if I think it’s got a good battery.” Id., ¶ 12. When Mr. Laccinole buys a burner phone, he also must buy a phone plan that gives him a phone number. He testified that he typically buys a phone plan with the smallest possible amounts of minutes for the cheapest price: $19.99 for 60 minutes, which lasts “for 90 days only” or for 60 talk minutes, whichever is first. Id., ¶¶ 14-15. While he could replenish the minutes on the phone to keep the existing phone number, he gets a new phone number. Id., ¶ 17. He testified that “most of the time” he does not even exhaust the 60 minutes he purchases. Id., ¶ 18. He admitted to having multiple numbers on each phone; “well, some of the phones I’ve had a couple of numbers on because I changed the number.” Id., ¶ 8.
He does not give out his burner phone numbers to his friends or family. Id., ¶ 21. He records any calls that come in on the burner phones and admitted that he does so to create evidence to support his TCPA lawsuits, as he found having a recording made it easier to prove his claims. Id., ¶ 25. He testified that:
Q Is it fair to say your real motivation in pursuing this is not to save minutes on your plan but to try to ferret out what you perceive is scam PACs?
A No. I want to make sure that the scam PACs start following the Telephone Consumer Protection Act.
Q …Your real motivation in filing a lawsuit, ***is to, as you just pointed out, is to sort of enforce the law against scam PACs, it is not really a concern about how many extra minutes you have on your phone or don’t have on your phone, is that fair?
A Well, I am concerned about the minutes because that certainly establishes the claim that underlies the lawsuit but, to be fair, yes, my motivation is to enforce the law against those scam PACs.
In light of this evidence the Court found Mr. Laccinole:
invites these phone calls and uses burner phones and the calls he records from them to file lawsuits. As such, the IUPA is entitled to judgment as a matter of law.
So first, this is a GREAT ruling, obviously and it follows directly in the footsteps of Stoops. The Defendant properly established the specific acts undertaken by the Plaintiff to create TCPA lawsuits–the purchase of multiple phones–and the intent behind those acts–a desire to bring TCPA suits. Those two pieces together are what supported the “with prejudice” dismissal in Stoops. So nice work!
But notice, however, this is an Article III dismissal only. Meaning, in theory, that the Plaintiff can refile in state court. So even though Laccinole “invited”–just as was the case in Stoops–Laccinole can theoretically sue again. Stoops could not because the dismissal in Stoops was on prudential standing grounds.
Either way a win is a win and I’m sure the Police Union is happy to have this one–and Congrats! But it could have been even sweeter if the words “with prejudice” appeared alongside “dismissed.”
Always happy to chat through ways to defeat the abuses of litigators.