WOUNDED: Barton Survives Summary Judgment in TCPA Suit BUT–” A reasonable inference can be made that plaintiff consented to be contacted so that he may bring a TCPA claim as business”

So back from travels and trying to get through my 11,000 emails. That’s hyperbole. (I think.)

Anyway saw this decision this am and figured I’d get a quick note out on it.

So Barton–yes that Barton, also that Barton–filed suit against some defendants (Xanadu Marketing Inc. and some guy named Joe Delfgauw) he claimed called him in violation of the TCPA. Nothing new there.

The defendant fought back and filed a suit for fraud against him, claiming that the guy manufactures lawsuits for a living. They might not be wrong.

Both parties moved for summary judgment on both claims (i.e. Barton’s TCPA claims and the Defendants’ fraud claims.) Both sides lost, but both rulings are interesting.

As to the TCPA claim, the Defendant provided a consent form with the number at issue. It then deposed the former owner of the phone number–nice move–who testified she had not provided the number on any forms since she stopped using the phone. Also submitted evidence of all of Barton’s other mischief in other TCPA suits and said–give me judgment.

On the other hand Barton signed a declaration saying “I didn’t do it.”

The Court held that Barton’s declaration was sufficient to create a question of fact so both sides lost summary judgment.

Notice, that the Defendant moved heaven and Earth here trying to prove that Barton manufactured this claim. And all Barton had to do was submit a declaration denying that he provided consent and he won. Well, maybe not won, but didn’t lose. That’s what makes these cases so tough–where a Plaintiff is willing to swear under oath they did not provide the consent at issue, these cases can go a long, long, way–i.e. to trial. Even with a litigator like Barton.

Moving on, the Court determined that Barton had standing to pursue his claims–distinguishing my Stoops case again–because he claims he bought his phone for his son and not just to set up lawsuits.

And the Court also found a question of fact on the counterclaim for fraud–since the Plaintiff claimed he did not provide consent the jury had to decide whether he was lying or not.

So the case is headed for trial.

But the big take away for TCPA defendants here, is that the Court found Barton’s past conduct in connection with TCPA suits allows an “inference” that he did, in fact, supply his number to set up a TCPA suit. Even though the Defendant did not win, that is a very helpful finding and one that other TCPA defendants facing the guy should keep in mind.

We’ll keep an eye on this one.


Leave a Reply