Well another day, another example of how bad TCPA arguments continue to make defending these cases harder for everyone.
In Moore v. Healthcare Sols. Inc., Case No. 21-cv-4919, 2022 U.S. Dist. LEXIS 220437 (N.D. Ill. December 7, 2022) a Plaintiff received two unwanted calls from the same number on the same day. He answered the second call and was pitched some stuff he didn’t want.
As the court colorfully put it:
The caller was a representative from Defendant Healthcare Solutions, Inc., offering to sell Moore an insurance policy. And just like that, Moore’s home turned into an insurance bazaar, with a salesperson peddling products that Moore didn’t want or need. Moore wasn’t interested in insurance, so he hung up.
You can see where this is headed.
He sued–because that’s what George Moore does–bringing a TCPA class action against the insurance company.
Now I suspect the Defendant likely has some very good vicarious liability defenses here, and perhaps some standing arguments. But rather than wait to bring those the company decided to argue that the Plaintiff had not pleaded he received two solicitations–as the law requires–but only a single call.
After all, the argument goes, someone else could have made the first call from the number that day. Or maybe it was us but we were calling about something else. Since he didn’t answer the phone, he doesn’t know.
That is obviously a terrible argument and the Court, correctly, rejected it.
But, as so often happens, the Defendant actually had a good argument to go with it. It also argued Moore had not alleged he personally placed his number on the DNC list which is a REALLY important requirement recognized by a new case earlier this year.
Unfortunately, likely because the court was irked by the first argument, the Court steadfastly rejected this approach:
That argument rests on an unduly strict reading of the regulation. The text refers to a subscriber “who has registered” a telephone number…. [But] [n]othing in the text ascribes any importance to the person who registered the number. The focus is on whether the number was registered, not who did the registration. The regulation protects numbers, not particular people. That’s why the Registry includes numbers, not names…
It does not matter who registered the phone number on the Do Not Call Registry. But even if it mattered, the complaint would survive. The complaint alleges that Moore’s phone number is registered, and that Moore is the only person who uses that number. That’s more than enough to support a reasonable inference that Moore registered his number.
So, while it is true that bad facts make bad law, so do bad arguments.
Let’s try to have a better Friday TCPAWorld.
Who registered that number on the DNC, and when?
I ran into that same situation when I sued Carnival Cruise Lines for bothering me with cruise offerings via calls to a DNC registered cellphone. See STRANGE v. CARNIVAL CORPORATION No. 5:18-295-SMH (W.D. La.) (Mar. 20, 2019). My Chief Judge scolded them like the Illinois Federal District Court Judge scolded HealthCare Sols. in the above case because it doesn’t matter who registered the number on the DNC – IT IS REGISTERED! They didn’t deserve to win. My Chief Judge reasoned as follows:
“Carnival’s arguments hinge on the assumption that Plaintiff registered his phone on January 24, 2018. Plaintiff’s proposed amendment states, however, that Plaintiff ensured on 1-24-2018 that his cellphone was registered. . . . Plaintiff cites Exhibit D (Doc. 26), which is a print of a page showing registration was complete with respect to his number. The exhibit bears the date January 24, 2018 at the top, but it is not clear whether that was the date of actual registration, the date Plaintiff checked for confirmation of registration, or whether it is simply the date the page was printed. Thus, a factual underpinning of the futility argument is not without doubt.
Record Document 29 at 2. As in its memorandum in opposition to Strange’s motion to amend, Carnival again relies only upon the exhibit referred to by the magistrate (Record Document 26), which clearly contains potential ambiguities. Despite having been informed of the perceived factual discrepancies by the magistrate judge, Carnival nonetheless unconvincingly argues that “[b]y stating “Registration Complete,” the registration document clearly shows that registration of the number was completed on the day that the website was visited.” Record Document 31 at 2. Carnival takes its circular logic to a further extreme by arguing that “Mr. Strange’s Amended Complaint also clearly states that he visited the website, and therefore registered his telephone number, on January 24, 2018.” Id. To the contrary, and as pointed out by Magistrate Judge Hornsby, simply visiting the website on that date does not necessarily indicate that Strange registered his number on that date. Carnival’s assertions otherwise, especially in light of Magistrate Hornsby’s memorandum order, are disingenous, at best. Therefore, Carnival’s attempt to have Strange’s claims dismissed for this reason is insufficient.
However, in his opposition brief to Carnival’s motion to dismiss, Strange states that “[t]he Plaintiff did register his cellphone number  on the National Do Not Call Registry on January 24, 2018 and did submit the registration document provided by the Federal Trade Commission website.” Record Document 34 at 2. Even this apparent admission in a response brief does not result in the outcome Carnival seeks. Strange goes further in his response to assert that the cell phone number at issue had already been registered in the Do Not Call Registry on October 29, 2014, and attaches an exhibit evidencing such. See Record Document 36. This assertion inserts another hurdle for Carnival to overcome.
In an attempt to overcome this new hurdle, Carnival conjures up an entirely different argument in its reply. Carnival contends that Strange has “acknowledged that Carnival called his number only one day later [than January 24 — the date of his registration], because it belonged to a Carnival customer, Mrs. Hill.”1 Record Document 31 at 1 (emphasis added). However, Strange “acknowledged” no such thing. There is no allegation in any of Strange’s filings that the mysterious Mrs. Hill was a Carnival customer, or what her relation is to the instant dispute. Carnival further suggests that the new, October 24, 2014 registration document submitted by Strange “does not implicate Mr. Strange’s privacy interests, since Carnival is permitted to call its customers (i.e., Mrs. Hill) even if that number is on the Do Not Call list.” Record Document 37 at 1-2. Once again, there is no allegation that Mrs. Hill was a Carnival customer or that the cell phone belonged to Mrs. Hill, and there is no evidence (as this is a motion to dismiss) to support any of these assertions. Simply stated, there are too many discrepancies, and far too much innuendo by Carnival, for this Court to be able to grant a motion to dismiss for failure to state a claim.
Incredibly, Carnival then proceeds to assert that Strange’s complaint should be dismissed because the TCPA provides that there is no violation when there is an established business relationship between the consumer and the company. In support of this argument, Carnival refers to the following statement made by Strange in his amended complaint: “Carnival Corporation is mostly a good Cruise Line Company whose focus is both customer centric while focusing on the bottom-line for their shareholders.” Carnival somehow concludes that “[t]his shows that Mr. Strange has been a customer of Carnival and has a close relationship with Carnival.” Record Document 31 at 3. This fantastical assertion by Carnival does not even merit a response by the Court.
I hope HealthCare Solutions will learn to do better, but on the facts before the Court now… they don’t deserve to win!
Clinton from Louisiana
I absolutely loved the Judge’s written decision; well written and enjoyable to read. Obviously, this judge understands why the TCPA exists. Of course, now comes discovery, and I will bet dimes to doughnuts that Healthcare will — conveniently — be unable to locate any call detail records for any of the calls and then arguing, once again, that there was only one call. After all, Healthcare will likelty argue, since the caller identification numbers were spoofed, two different scumbags could have been spoofing the same spoofed number. (Yep, and pigs can fly backwards.)