LOSING IN A WIN: Big Law Finally Wins a TCPA Case (Sort Of)! But It Still Manages To Lose the Bigger Battle Even When the Plaintiff Doesn’t Show Up

So Big Law has finally won a TCPA case! Sort of.

The case was only dismissed because the plaintiff–who didn’t have a lawyer– just didn’t respond to  the motion. And #biglaw still managed to LOSE the more critical issue in the case despite the complete lack of opposition. Kind of crazy.

Here’s the story.

In Hill v. Shore Carnival, Inc., 2026 WL 217776 (E.D. Tex. Jan. 5, 2026) a court tossed a TCPA complaint by litigator Mardella Hill after she failed to oppose a motion to dismiss.

The defendant argued the face of the complaint showed consent and the court agreed:

Here, Plaintiff’s complaint shows a screenshot of a message she sent to subscribe to text messaging from Defendant Shoe
Carnival on January 2, 2025. (Doc. No. 1, at ¶ 27.) Plaintiff seems to suggest that she received this message from Shoe Carnival,
but the screenshot in her allegatiosn shows that she sent the message. Id. Plaintiff’s consent to messaging undermines her claims
as § 227(b) only makes automated calls unlawful where the call was made for a purpose other than “emergency purposes or
made with the prior express consent of the called party.” 47 U.S.C. § 227 (b)(1)(A). Plaintiff’s pleading of the affirmative
defense of consent to messaging therefore undermines her claims for violations of the TCPA. Although Plaintiff also alleges that
she revoked consent via email, she does not state when Defendant allegedly viewed the email and Plaintiff’s own allegations
demonstrate the unwanted text messages ended shortly thereafter. Plaintiff has filed no opposition to this motion, nor has she
further clarified her allegations. Without further clarification, the court finds that Defendant’s motion should be granted and
Plaintiff’s claims should be dismissed with prejudice.

Simple.

Great.

No problem.

Well, one problem.

Shoe Carnival also tried to take advantage of the lawyerless Hill by also asking the court to find SMS messages are not covered by the TCPA to begin with– but that didn’t go so well:

As to the matter of whether text messages are covered under §§ 227(b) and (c), numerous federal courts of appeals, including
the Fifth Circuit, have held that § 227(b) applies to text messages, or assumed so without deciding the issue. None has construed
either provision not to cover text messages. See, e.g., Breda v. Cellco P’ship, 934 F.3d 1, 4 n.1 (1st Cir. 2019) (“The TCPA
also applies to … text messages.”); Dominguez v. Yahoo, Inc., 894 F.3d 116, 117 n.3 (3d Cir. 2018) (“Although the text of the
statute refers only to ‘calls,’ we have held that, under the TCPA, that term encompasses text messages.” (citing Gager v. Dell
Fin. Servs., LLC, 727 F.3d 265, 269 n.2 (3d Cir. 2013))); Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 688 (5th Cir. 2021)
(“Robocalls and robotexts are nuisances. Congress banned them in the [TCPA].”); Warciak v. Subway Rests., Inc., 949 F.3d 354,
356 (7th Cir. 2020) (“Text messages to a cellular telephone qualify as a ‘call’ within the meaning of the statute.”); Drazen v.
Pinto, 74 F.4th 1336, 1346 (11th Cir. 2023) (holding, under § 227(b), that receipt of one unwanted text message caused concrete
injury sufficient for Article III standing).

Naturally, this court would follow suit with respect to these provisions of the TCPA having been interpreted to cover text
messages, but the court need not decide this question today as Plaintiff’s claims fail by pleading her own consent.

Pause.

Think about what just happened right there.

The court literally did not have to address that issue. And ultimately did not decide it.

But it still decided to have its law clerks spend time writing a portion of the opinion to refute Defendant’s position DESPITE THE FACT NOBODY ARGUED AGAINST IT.

That’s tough. And kind of disrespectful.

It’s the court’s way of saying “I did not appreciate your bogus argument and I am going to make sure you know that you’re wrong even though I don’t have to.”

Eesh.

Be smart about the counsel you choose folks. Big law manages to find a way to lose even when it wins!

Make sure you’re on the WINNING side of the ledger and request a FREE copy of the 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance. You will LOVE this review– full of hundreds of cases broken down and analyzed!

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Chat soon.