TOTAL MISFIRE: Court’s Denial of CarShield’s Motion to Dismiss Turns On Questionable Records Purportedly Showing Consent

Hi TCPAWorld!

Those who follow the TCPAWorld know that consent is king and an affirmative defense to many TCPA claims. But it is important to remember that records of consent must be authentic and if a court believes it is not, then it will not consider them (even as early in the proceedings as in the motion to dismiss stage).

That is exactly what happened here in the case BOBBY MORRIS v. NRRM, LLC D/B/A CARSHIELD, 2026 WL 860433 (E.D. Mo. March 30, 2026) where CarShield attempted to attach certain (allegedly fabricated) documents showing consent as part of its motion to dismiss in support of its argument that they obtained permission to contact the Plaintiff.

The brief background of the case is that Plaintiff alleges that he repeatedly received unwanted telemarketing calls from CarShield despite him being on the national Do Not Call list. Plaintiff alleges that CarShield called him seven times in less than an hour to advertise its services. CarShield moved to dismiss the complaint, arguing that Plaintiff provided consent and included in support of its memorandum, audio recordings, transcripts of the calls, data allegedly submitted by Plaintiff through CarShield’s website and consent language on that website and a purported chronology of interactions between the parties. The recordings show that Plaintiff provided one word responses and minimally engaged with the caller without objecting to the call.
Plaintiff submitted an affidavit alleging that he never visited CarSheild’s website and never consented to being contacted and implied that CarSheild’s putative evidence was fabricated (specifically the printouts from CarShield’s website). While Plaintiff did not dispute the authenticity of the recordings, he did dispute the completeness of it.

In determining whether to consider the documents provided by CarShield (specifically the printouts from the website and the contents of chronology provided), the court looked to the Complaint. The court reasoned that since the Complaint did not allege any form of prior interaction or relationship between the parties nor does it allege all of the contents of the chronology, the court declined to consider those materials. The court also noted that their refusal to review the documents was warranted given that the contents of chronology exceeded that what was alleged in the Complaint, and further because Plaintiff denied the authenticity of the printouts from CarShield’s website.

Since the court declined to consider those materials (calling them improper), the Court denied CarShield’s motion to dismiss even while taking into consideration the call recordings. The Court analyzed one of the recordings and found that even though a CarShield representative requested basic information about Plaintiff’s car (i.e. make and model, zip code, number of miles on the vehicle and whether there was a check engine light on), this was “hardly decisive proof of consent.” The Court was further blunt in its disagreement with CarShield stating that CarShield’s own representative stating Plaintiff requested information does not prove Plaintiff actually did request it and went further to stay that “not every request for information implies consent to a telemarketing call.”

Furthermore, the court disagreed with CarShield’s contention the calls proved that Plaintiff “never once revoked his consent” reasoning the Complaint alleges at least seven calls and CarShield only provided three calls (which Plaintiff contests the completeness of) and thus CarShield has not disproven Plaintiff’s allegation that he asked CarShield to stop calling him. As a result, the court denied the motion to dismiss.

Lastly (and very noteworthy), the court issued a warning to both parties regarding ensuring the authenticity of documents provided to the court since each party implied that the other engaged in serious misconduct.
As discussed above, CarShield submitted a document purporting to be the record of a website form filled out by Plaintiff while Plaintiff submitted a sworn affidavit stating in response, “I never visited CarShield’s website or any affiliated website and never submitted any of my personal information or telephone number to CarShield or any related entity.” The affidavit also stated that the IP address associated with the form indicates that “the claimed consent originated internally from CarShield.”

The court warned that submitting fraudulent evidence or false testimony under perjury could have repercussions and while the court seems to provide the parties with the benefit of the doubt, it does note that the briefings do raise the impression of a potential violation of Federal Rules of Civil Procedure 11(b) (that acts as a representation that the factual contentions submitted to the court do have evidentiary support).

Hopefully this is an innocent oversight by either party but if it is not, the court will not find this funny at all (the timing of this is impeccable given that today is April Fools Day).

Be sure to attend the Law Conference of Champions this May, where among the many wonderful topics that will be covered, the amazing Steven Rozenfeld will cover consent as it pertains to the broader TCPA and telecommunications spectrum. Not only will he go over what forms of consent work (unlike what CarShield tried to do here) and why they work, but also explaining what forms of consent is enforceable (i.e. assent, notice and recordability) and how these principles apply. Such a presentation would have been helpful for CarShield prior to submitting those records to the court. This is one you will not want to miss as it could save you plenty of money and headaches. Make sure to reserve your spot today and get ready for a conference of the highest order.

Talk to you soon TCPAWorld and be safe.