Editor’s note: earlier version of this article did not identify the case name. Client decided they DID want the case named. So here we are. 🙂
Oh, there is nothing sweeter than waking up in the morning and seeing a HUGE HUGE HUGE company-saving case for a good and worthy client.
Almost makes up for how sick I was on Friday. Ugh.
So as you all know the Troutman Firm is on absolute fire right now. Everybody seems to want to use us–and its not just due to our ultracool website. Its the wins!
Case, after case, and now, after case has resulted in huge, important, wins.
And our latest, arguably, is our biggest yet.
In Pepper v. GVG Capital, LLC, CIVIL ACTION NO. H-22-2912 (S.D. Tex. Jan. 17, 2023) the Court was asked to determine whether text messages offering to buy houses violated state or federal law. The texts were allegedly not just offers that the sender of the texts might buy the house–they might, they might not–but were allegedly sent to generate leads (i.e. if a consumer expressed interest in selling their home for cash their information would be sent–with their permission–to a third-party buyer, who would then compensate the caller for the lead.)
Now there are already a number of decisions out there–correctly–finding that these sorts of calls do not constitute solicitations where the caller is the proposed buyer. (And since Troutman Firm runs TCPAWorld.com we, of course, know all of them backward and forward.) But no court had ever addressed the issue of whether such calls can be made to generate leads for profit as was allegedly the case here. Until today.
In the new decision the Court held that the mere fact the calls were made to generate leads did not convert the texts into solicitations. Profit motive alone is not dispositive of the issue. What matters is whether the consumer was being sold a product. And they simply were not. Plus there were no ancillary charges posed to the consumer as part of the transaction–the lead generation effort was totally free to the consumer.
In reaching this outcome the court both applied and distinguished the ruling in Anderson v. Catalina Structured Funding, Inc., 2021 WL 8315006 (W.D. Mich. Dec. 21, 2021). There the court had held that a structured settlement repurchase program offer was a solicitation because of the fees a consumer would be to take advantage of attendant services. But in our case, there were no such fees. And the Anderson court also recognized the general rule–followed here–that a mere transaction is not a solicitation, nor is a profit to be recognized by a resale of a purchased good sufficient to convert a mere offer to buy into an offer to sell.
So the TCPA claim under 227(c) was dismissed–no telephone solicitation, no claim.
But that’s only half the good news.
Perhaps an even BIGGER holding for those of you operating in Texas– the Court issued a first EVER ruling that TEX. BUS. & COM. CODE § 302.001(7)–defining telephone calls– does not apply to text messages!
The court determined under the Texas Supreme Court’s holding in Fleming, it should not consider the legislative history of Chapter 304 of the Business and Commercial Code, including the reference to the section 323.007 of the Government Code, if “telephone call” is unambiguous. And in the court’s view, the plain meaning of “telephone call” does not encompass text messages:
While the word “call,” used alone, may be ambiguous when used in common contexts (“Call me when you’re ready to leave” may include a text message indicating readiness), “telephone call,” as a phrase, is not. The placement of “telephone” before “call” indicates a particular kind of communication and removes whatever ambiguity might be present
with the word “call,” used alone.
Texas claim dismissed with prejudice!
I cannot tell you all how pleased I am. GVG Capital is a great bunch–they deserve to win– and they obviously could not afford to see their business model destroyed–and that’s just what the Plaintiff was trying to do here. And these are good folks, not spammers or miscreants. Really glad they came to us and really glad we could help them. This is just the sort of thing Troutman Firm is here to do.
But not this one.
Pause–unlike most law firms where the partners hog all the glory and court time, Queenie and the Czar both stepped back and let the Dame rise to the occasion here, arguing 100% of the hearing time that resulted in this huge win. And because of that decision–the client just had the biggest victory possible. Take note #biglaw.
Now, it turns out the Dame has tried a bunch of felony trials as a southern prosecutor so she knows a thing or two about the courtroom–you really should look into her background, she’s incredible–and I just LOVE LOVE LOVE unleashing her into complex civil cases. People are not going to know what him them when she walks in. Just amazing amazing to see.
Really incredibly proud of our Dame, and incredibly happy for the client.
One last note, thank you to Earl L. Ingle, of Munsch Hardt Kopf & Harr, P.C. for the local counsel assist on this one. Great work!
Now, if you’ll excuse my cough, I need to go make up for being out of the office Friday. Chat soon TCPAWorld!
Past performance—no matter how consistent and outstanding— is not a guarantee of any future results. No lawyer—not even the powerful attorneys at the Troutman Firm—can guarantee you any outcome in litigation.