SECOND STRIKE: Dude in Prison Sues Ally Financial for TCPA Violations–It Doesn’t go Well

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So callers these days have quite a bit to worry about. TCPA class actions are spiking while government regulators are clamping down. Carriers are blocking and labeling calls. And in the background troll litigators are always out there manufacturing lawsuits and looking to make a buck off the statute. Its a bit of a headache, to say the least.

But the one thing I hadn’t seen before–dudes in jail filing in TCPA suits.

Now if you’re in prison it seems you have a lot of time to rest and–if you have access to the internet–cause mischief, especially if you learn about the TCPA. And that is, apparently, just what is happening in some circles.

In Anthony Lynn Fluker v. Ally Financial, Inc. 2023 WL 8881154, Civil Action No. 22-cv-12536 (E.D. Mich. Dec. 21, 2023) the plaintiff sued Ally claiming it made unconsented calls to him using an ATDS and pre-recorded voice messages. One problem–he was in jail without his phone at the time the calls were made.

I mean… my goodness.

The Court made short work of the ATDS claim–joining those courts that have found (probably incorrectly) that targeted calls can never violate the TCPA.

On the prerecorded call claim, however, the Court paused to note Plaintiff could not know if Ally used a prerecorded call or not since he was in jail at the time and did not receive the call.

So…yeah.

The Court also recommended the lawsuit be treated as Plaintiff’s “second strike”–meaning that he can only file one more “frivolous” lawsuit before his right to file actions from jail is taken away from him.

This is one of the oddest cases I have seen in a while. Nice ruling for TCPA defendants, of course. And for those interested in information about ATDS rules post-Facebook be sure to check out our always-updated Facebook Ruling Resource Page!

BTW–TOMORROW the 2024 TCPA Troutman Amin, LLP Annual Review presented by Contact Center Compliance will be available electronically. 🙂

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Published by Eric "Czar" 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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