I hope everyone had a love-filled Valentine’s Day. TCPA World has been rolling blogs off the hot press to keep you updated with the very latest news and with that – yesterday The Sicilian posted her first blog!
Barton AGAIN! In September 2022, the Baroness shared Barton’s minor victory slithering passed the pleadings stage. Well, we are back now with a new battle of the motions for summary judgment and some striking too.
Barton filed a Motion for Summary Judgment on Serve All Help All’s (SAHA) Counter claim, SAHA filed for Summary Judgment on Barton’s Amended Complaint and SAHA’s cross motion for Counterclaim. Barton has also moved to strike various pleadings.
A lot to unpack here.
But first, I just want to show appreciation to the court for listing Barton’s cases at the outset of its order. In other words, Barton is a serial litigator.
Barton’s minor child’s phone number is the subject of this lawsuit as Barton contends that he uses the phone to make calls and monitor his kid’s activities.
Barton argues that SAHA contacted his minor son’s phone on several occasions and also, left a prerecorded message. During a call and to gain the agent’s trust, Barton pretended to be interested in SAHA’s assistance and provided answers to keep the conversation going in his quest for the company’s identity.
SAHA contends that as a non-profit it is exempted from compliance with the TCPA and it confirms that it contacted the phone number three times. SAHA also argues that Plaintiff’s sole motivation in filing these cases is financial and attaches screen shots from the TCPA University website which provides “comprehensive consultancy services” by its founder Nathen Barton.
The court unimpressed with the back and forth stated:
“The parties’ briefing is a confusing mess. Both sides failed to provide the basic elements of their claims or counterclaims and failed to point to the evidence that supports each element or note the lack thereof.” Ouch!
In its analysis, the Court swiftly denied Barton’s motions to strike. Barton’s motion for summary judgment on SAHA’s counterclaim for fraud by non-disclosure was granted and the claim dismissed.
SAHA presents several arguments on the TCPA Claim. First, the TCPA does not apply because SAHA does not use an automatic telephone dialing system. But the TCPA states it is a violation for calls made using any automatic telephone dialing system OR artificial or prerecorded voice, which SAHA admitted. Strike 1.
SAHA argues that the claims should be dismissed because the calls do not constitute a telephone solicitation and SAHA is exempt from the TCPA as a non-profit entity. But the provision that Plaintiff alleges is 227(b)(1)(A)(iii) which refers to calls not “telephone solicitations.” Strike 2.
Again, the Court was unpersuaded that SAHA is exempt from the TCPA because “there are issues of fact as to whether these calls were really made for profit entities.” Strike 3.
One more for good measure, spring training is underway in Florida (at least).
SAHA argues that Plaintiff consented to the calls. But 47 C.F.R. § 1200(a)(2) requires prior express written consent if the call introduces an advertisement or constitutes telemarketing. The Court already stated that there are questions of fact regarding the calls. Strike 4 just because we are counting, I guess.
The Court denied summary judgment for Barton’s state claims for the same reasons.
The Court granted SAHA’s summary judgment but only as to the Washington State Privacy Act (“WSPA”) claim and dismissed Barton’s claim on the finding that Barton failed to demonstrate that he had been injured by SAHA’s alleged recordings of their conversation. Since state privacy laws are buzzing, this is important to note.
All other claims by SAHA were dismissed.
Stay safe out there, TCPA World! If you need us, look for the lion!
Til next time, Countess!!!