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.
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.
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!