TCPA QUICK HITTER: Court Dismissed Claim for Lack of Standing Where Plaintiff Consented and Tried to Manufacture Harm

Real quick, great standing case out of Atlanta earlier this month I forgot to cover.

In Hall v. Xanadu the Defendant moved to dismiss on standing grounds arguing that the Plaintiff had consented to receive the texts at issue. Normally this is not a proper argument because consent is a substantive issue and NOT a standing issue. But if it works it works.

And it did.

The Court in Hall found the Plaintiff did not dispute via a declaration providing consent. And since the motion was a factual attack on standing the Court determined Defendant was entitled to a W and dismissed the action.

Nice work!

One of the most interesting pieces of the ruling, however, is the Court’s observation that spending time determining who sent the texts and/or researching how to stop them–as if that wasn’t obvious–is not a form of harm: a Plaintiff cannot “manufacture” standing in this way per the Court.

Very interesting, no?

Decision here for the interested: 2023-07-06 (0034) ORDER GRANTING Defendant Xanadu Marketing Incs 25 Amended Motion to Dismiss


1 Comment

  1. Lot’s of goodies in this case!! And a link to boot – stylin’ – good job bro!

    Deep dive, from the defendants Amended MTD (Doc #25):

    p 12 “But Plaintiff could not possibly have suffered any harm from this alleged (but untrue) hyper-technical violation. Houses Into Homes sent the text messages to Plaintiff from a short
    code that was identifiably registered under its name.”

    WTF!?!?!? So the victim is obligated to (attempt) to track down the short code user name; and the fact it shows a short code as an origin # implies the caller identified themselves???

    p 12 “The text messages sent to Plaintiff enabled her to immediately respond “STOP” to the short code that sent the messages, which then automatically transmitted her message to the sender and opted her out of receiving additional messages.”

    Implying these particular text messages are special by allowing immediate response??
    SMS marketing is premised on the (sad but true) fact texts get opened almost immediately…

    p 12-13 “And, as evident in Defendant’s records, Plaintiff indeed texted “STOP” within seconds of receiving the texts she asked for and was then immediately placed on the Do Not Call list. In fact, she responded “STOP” in the same minute she received at least two of the text messages.”

    So injury is based on the amount of time one takes to respond to a series of texts? Is one injured after 1 minute? 10 minutes? 60 minutes? Yeah, yeah, Salcedo and all that but come on now.

    This is what defense attys have created…turning the original intent of Congress on its ass – by nit-picking details – yeah I know ‘that’s what they do’…who cares if the ATDS used specific software/code??? I still got an un-consented robocall damn it!!!!

    Flip side:
    Seems she filled out a form at 5:08 am using her real name and info, then again at 5:08 a second form changing only her name, then a third form (also at 5:08 am) using name from second form BUT a different IP address (using a VPN to obscure her location?)

    Lesson to be learned…if you’re gonna get up BEFORE the crack-o-dawn to manufacture TCPA suits by cranking out multiple consent forms (three within 60 seconds!?), have a friggin’ cup of coffee first!!

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