CATCHING ON!: TCPA Defendant Applies Strategy from Troutman Firm Win– Secures Swift Dismissal of Suit on Standing Grounds and I LOVE it

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I love it when we can pioneer a winning strategy that other TCPA defendants can use to win!

You’ll recall last year, the Baroness delivered a stunning first-in-the-nation result challenging a TCPA suit on the “fairly traceable” prong of the Article III standing test.

INCREDIBLE TCPA WIN: TCPA Class Action Against CarGuard Thrown Out as Troutman Firm Delivers MASSIVE First-In-the-Nation Result

The argument we advanced was that given the lack of any wrongdoing by the Defendant–there a seller of warranties who had no idea a rogue seller was violating contract terms by making prohibited outbound calls– any injury caused the Plaintiff was not traceable back to the Defendant. The mere fact that the Defendant had profited from the sale of the warranty was not sufficient.

The court in our case agreed, and the Baroness became an instant TCPAWorld hero for her courage and quick thinking.

But the real test of greatness is not winning once, but developing a strategy that can deliver repeat results. And that is just what the Baroness has done.

Consider: in Goodell v. BH Automatice, 2023 WL 2691452, No. CV-20-01657-PHX-JJT (D. Az. 03/29/2023) a Defendant in a TCPA case made the exact same argument the Baroness invented. And guess what? They won too!

In Goodell the Defendant was sued for TCPA violations arising out of calls made by car dealerships that were within its investment portfolio. The Plaintiff alleged the Defendant was vicariously liable for those calls but the Defendant filed a standing motion introducing evidence demonstrating that their contracts with the dealerships did not authorize the calls at issue. Other evidence was also presented highlighting the lack of day-to-day control over the dealerships and otherwise disclaiming liabilty.

The Plaintiff opposed with allegations of wrong doing– but no evidence. Yet on a factual standing challenge the Plaintiff has the burden of introducing sufficient evidence to sustain a finding sufficient to keep the case in court (similar to MSJ but at the pleadings stage!)

Since the Plaintiff failed to make his showing the case was dismissed! Defendant walked away with an outright victory right at the start of the case. Great move!

Now I can’t say for sure that the Goodell defendant copied our move but–either way–I am glad our tactics are working for others and not just for our own clients.

As most folks now, I created TCPAWorld to share GREAT ideas with OTHER LAWYERS– even my competitors–because when people are educated on the law they will help me make great case law that will, in turn, help my clients. That’s why we never put barriers around our content–its all free for YOU (and everyone else) every day. No sign ins required.

I know, I am awesome.

If you have questions about how to deploy this strategy in YOUR cases, reach out. I am a friendly Czar. Most of the time.

Have a great Tuesday TCPAWorld!

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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