CONSENT DOESN’T MATTER: Another Court Rejects a TCPA Defendant’s Premature Bid to Dismiss Suit On Consent Grounds

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Nothing more frustrating for a TCPA defendant than to be facing suit in a class action for sending a message the consumer consented to.

But the way the rules in litigation work, generally the defendant is stuck in the case past the pleadings stage and cannot get out until later in the case when evidence outside the complaint can be considered by the court.

Take Zelma v. Wonder Group, Inc. 2025 WL 2976546 (D. N.J. Oct. 22, 2025) for example.

There the defendant swore up and down the plaintiff consented to the messages and that is the only reason they were sent. But it doesn’t matter. The Plaintiff alleged the messages were sent WITHOUT consent– and that is dispositive at the pleadings stage.

As the Court said: “Although Defendant may be correct that the Verification Texts were sent in response to Plaintiff registering his phone number on its website, its fact-based argument is not appropriate for the Court to consider at the motion to dismiss stage.”

While the motion was a waste of money–it had not chance of success–I don’t fault these guys for trying. Like I said, this is extremely frustrating for TCPA defendants and sometimes venting in papers to the court is worth the money.

The backstory here is interesting. Plaintiff claims he received two random text messages from Wonder stating: “Your Wonder verification code is 041797” and “Your Wonder verification code is 475599.”

The messages made him wonder where the came from– thank you very much–and his theory is that the messages were trojan horse designed to make people research Wonder and then, apparently, want to buy stuff after they learn about the company.

Court did not buy the trojan horse theory but it did find the messages might have been random and so ATDS allegations were accepted as plausible at the pleadings stage.

Will keep an eye on this one.

And you should keep an eye on Troutman Amin, LLP rates! Going up January 1, 2026.

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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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