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

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.


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!


Chat soon.



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