WRONG CHOICE?: Defense Arguments Appear to Frustrate Court Leading to Bad TCPA Ruling Against Choice Home Warranty–And I Can’t Help But Brag a Little

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Quick word of advice to TCPA defendants: Don’t make arguments that make federal judges angry or frustrated. Really never goes well.

Consider: one of the best TCPAWorld trends (for defendants at least) over the last year is courts requiring more factual allegations to establish the use of a prerecorded voice.

The rules have long required FACT pleading and not mere recitation of the elements of a statute. So stating that a consumer received a “prerecorded call” is not enough standing alone to make out a valid claim.

In a new case, however, the Court in Katz v. CHW 2023 WL 6445798 (W.D. Ark. Sept. 29, 2023) allowed fairly unadorned allegations past the pleadings stage.

The Complaint alleged only: “Mr. Katz is aware that these telephone calls used a prerecorded or artificial voice because of his familiarity with normal human interaction, intonation, manners of speaking, and his inability to engage the prerecorded or artificial voice in reciprocal, sensical communication or banter.”

While that seems a bit flimsy the Court credited it out of hand:

That is good enough. Virtually everyone can quickly recognize when they are speaking with a non-human on the phone, and Mr. Katz has provided more than sufficient detail to persuade the Court that he is no outlier on that front.

So there you go.

“I know the difference” is essentially sufficient to allege the use of a prerecorded voice these days.

No good.

The Court also went on to find that a residential number for purposes of the TCPA is any number that is not assigned to a business subscriber. Eesh.

So Choice Home Warranty ended up losing its entire motion to dismiss and its motion to strike with the court repeatedly “favoring” Mr. Katz–a repeat TCPA litigant.

How did this happen?

Well the Court seemed very annoyed with the defendant’s arguments here characterizing them as “weak” and “inexplicabl[e].”

Not good.

On the other hand a federal judge just noted on the record that the Czar’s “preparation [for a hearing] was extraordinary” and “rarely have I seen counsel so on top of the the law and the facts.”

So.. booyah.

Choice of counsel matters folks. 🙂

I can never promise you a result. But I CAN promise you that no one will work harder for you or be more on top of your case and the law than Troutman Amin, LLP.

NO ONE.

Do you want to be so on top of the TCPA that federal judges can’t help but comment about it? Get a copy of our 2023 TCPA Annual Review presented by TrustedForm and you’ll be on your way! It is FREE!

ITS HERE ITS HERE! TROUTMAN FIRM’S INCREDIBLE 2023 TCPA ANNUAL REVIEW–PRESENTED BY TRUSTEDFORM–IS NOW AVAILABLE!

Chat soon.

 

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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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