There are only a handful of truly inviolate rules in Civil Procedure. But for some reason TCPA defendants just cannot wrap their head around one of these rules–that extrinsic evidence cannot be considered at the pleadings stage.
I see this all the time.
A complaint is filed against a company. They believe the Plaintiff provided his/her consent-usually by virtue of a purchased third-party lead. The company wants to seek sanctions against the Plaintiff and/or immediately submit the consent to the court imagining that will immediately end the case.
That is not how it works.
I have been trying to explain this to folks for years now, but examples help. And here’s another one.
In George Moore v. Nicole Hupp, 2023 WL 7166555 (N.D. Ill. Oct. 31, 2023) the Defendant–an Allstate insurance brokerage–was sued by repeat mischief maker George Moore.
The Defendant claimed Moore visited http://www.myinsurehub.co and provided his consent. Maybe. Maybe not.
Defendant moved to dismiss the Complaint submitting the consent form to the court. One little problem–inviolate rule of civil procedure no 1. Thou shalt not submit extrinsic evidence to the court on a motion to dismiss. The court can ONLY consider the allegations of the complaint at the pleadings stage. And Moore had alleged a lack of consent. So motion denied
When a Defendant makes a CLEARLY meritless argument like this is only destroys their credibility on other arguments. No surprise, therefore, that Nicole Hupp went on to lose the remainder of their motion to dismiss–arguing (wrongly) that DNC rules only apply to autodialed calls–and their entire motion to strike–arguing (correctly) that the class allegation were insufficient to survive the pleadings stage.
Credibility matters in this game. When you make a terrible (plainly incorrect and otherwise impermissible) argument in a motion you can fully expect the court to gloss over and disregard everything else you submit. Plus its just a waste of time and money.
Usually I say TCPA litigation isn’t for the green of horn, but this sort of mistake isn’t a TCPA-specific issue. This is just a “I don’t want to follow the rules” sort of mistake.
In any event, for all those frustrated TCPA defendants out there who believe you have been wronged by a litigator troll keep in mind two things: i) you may have been sold a fake lead; ii) even if the litigator troll actually did set up his own lawsuit you have to wait until the MSJ stage to prove that. Both of these realities suck, but that’s the risk lead buyers take right now.
Hopefully the FCC will soon give clear standards and afford a safeharbor to lead buyers who follow the R.E.A.C.H. standards! Then these issues will resolve!
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