ANOTHER #BIGLAW LOSS: Court Rejects Defendant’s “Called Party” Argument in TCPA Wrong Number Class Action

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Here we go again.

Following McKesson one of the single most important open issues under the TCPA is the identity of the “called party” for purposes of the TCPA’s express consent rules.

If the “called party” is the subscriber or answerer of a call then callers are strictly liable for all wrong number calls and for any call answered by somebody other than the customer the caller is trying to reach.

If, on the other hand, the “called party” is the intended recipient– i.e. that the caller needs only permission of the person it is trying to call in good faith–then it has a ready defense even in the event of a wrong number call.

There is good reason to think “intended recipient” is the right approach. Most basically, Congress intended to provide a caller with a ready defense when they had consent of the person they were trying to reach. That intention is destroyed if courts misinterpret the provision to make the defense unavailable in circumstances beyond the caller’s control.

As we discussed with the Wolf on Deserve to Winn (Ep. 35) the Plaintiff’s bar is actively setting to work making law on these issues– finding weak opposing counsel and good jurisdictions to bring test cases and develop positive case law (for them).

Here’s an example.

In Massarello v. Power Home Remodeling Group, 2025 WL 2463153 (E.D. Mich. Aug. 27, 2025) a #biglaw firm decided to MOVE TO DISMISS case on a called party argument.

Right out of the gate this is an awful idea. The case is a putative class action– so they just highlight AND LOST major substantive issue that is common across the class. So odds of certification here just went through the roof– plus they waived one-way intervention protections.

So so dumb (IMO.)

Plus the posture does not allow the facts to be developed. Rather than demonstrate, for instance, the defendant has great policies and some sort of error lead to the calls– not a legal defense but a practical way of framing a legal argument that makes the situation more understandable– they simply lob a bunch of sterile argument at the court with no factual support.

Anyway, unsurprisingly they lost.

Court finds the “called party” is NOT the intended recipient and, essentially, that defendant is liable for the calls.

Not good.

In fact, pretty terrible.

But whatever, I’m about to be on stage at Contact.io and I feel great about it! Such a wonderful show and the Troutman Amin, LLP stage is back!

Indeed, things are going great overall. YouTube channel now has over 7,500 followers (that exploded!), new website launches next week (incredible!), and the beautiful lion logo will be on the field for Cal’s first home game September 6, 2025!

Yes, we took the van on a road trip.

Yep, everything is coming up Troutman Amin, LLP right now.

Chat soon

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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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