“NOT CONVINCED”: An Early Effort to Raise Consent in a TCPA Suit May Have Just Backfired Badly for a Defendant

Repeat after me: you cannot raise a consent defense at the pleadings stage unless the complaint specifically alleges the fact consent was provided.

It always makes me cringe when I see TCPA defendants lobbing purported records of consent at the court in connection with a motion to dismiss. These efforts will ALWAYS fail, because they have to.

Courts are not permitted to consider evidence outside the record at the motion to dismiss phase so these motions are bound to fail. But some defendants think it will help to get the judge “on their side” if they see the consent record. That’s generally not how it works. More likely the court will be annoyed that you wasted its time and may even find reasons to question the validity of the consent at the pleadings stage.

That is precisely what happened in Taylor v. Fink, DDS 2026 WL 290957 (N.D. Ga. Feb. 3, 2026.)

There the defendant moved to dismiss the case arguing the an individual named Missie Gosset had provided consent to be called in the course of filling out the Defendant’s online dental implant questionnaire.

Two problems:

1. The aforementioned issue that this event was not clear from the face of the complaint and, therefore, could not be considered as part of the motion to dismiss;
2. Plaintiff’s name is not Missie Gosset.

On the first problem the court predictably found: “As an initial matter, the Court agrees with the Plaintiff that it cannot consider the Defendant’s affidavit and questionnaire evidence in this procedural posture.”

Yep. Useless.

Actually, worse than useless.

As to the second problem:

” The Defendant’s name does not appear on the document at all, and the Plaintiff does not identify as Missie Gossett…. The Court is not convinced, however, that the Defendant’s evidence would constitute “express invitation or permission” even if the Court considered it, given the absence of either party’s name.”

Eesh. That’s all kinds of bad news.

Now some might say it was valuable to have the court’s take on this terrible consent argument early in the case. Perhaps. But when neither your name, nor the name of the person you called, is on the form you better have a really good factual basis for a consent argument that transcends the form itself. And there was nothing like that presented here. So this was just a waste of the court’s time.

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