We’ve been following the saga of repeat litigator (troll) Chet Michael Wilson very carefully.
This is the guy with the 999-9999 phone number who has received innumerable calls because consumers enter fake phone numbers into forms (and businesses ocasionally use 999-9999 as a predicate for a wrong number or DNC request–don’t do that!)
Some defendants have foolishly tried to defeat these claims arguing the consent of the consumer that filled out the form–who never even owned the number– was somehow sufficient to allow the calls. Nope. No chance.
The far better argument is that by willingly obtaining the 999-9999 Wilson was hunting for the very calls he receives. It is the doctrine of Volenti non fit injuria. And it is a very powerful defense recognized across the nation.
But the argument must be wielded with Troutman-like finesse if it is to meet with victory. I, of course, famously won the first ever Article III dismissal of a TCPA case on prudential standing grounds in the Stoops v. Wells Fargo decision way back in 2015. In that case the court tossed a suit by a woman who had bought over 30 cell phones to try to set up TCPA lawsuits.
Wilson only appears to have one number– haven’t tested that yet– but he has certainly brought a pile of lawsuits (dozens?) all across the nation. So he may or may not have standing– I suspect he doesn’t. But Nissan North America didn’t hire me to test that issue.
Instead they hired some other lawyers and got a losing result.
In Wilson v. Nissan North America, 2026 WL 1081151 (M.D. Tenn. April 21, 2025) the Plaintiff claims he received multiple prerecorded calls from a third-party company on behalf of Nissan.
Pause.
So the third-party allegedly made a bunch of robocalls to Wilson’s 999-9999 number–such a rookie move BTW– and Wilson sued Nissan in a TCPA class action.
Nissan moved to dismiss the case arguing Wilson’s use of the 999-9999 number meant he lacked standing to sue and tried to rely on my Stoops case for the win. But as many many lawyers have found over the years– it is very difficult to walk in the Czar’s shoes. What I pull off, others simply cannot. And that will include Nissan’s counsel here.
See the trick is this– the argument doesn’t work at the pleadings stage. You need evidence of intent. You need him to admit what he’s up to. And for that you need a subpoena to obtain call records. You need a deposition. You need to grind him. Trap him. Expose him. Peel him like an onion.
Most lawyers just don’t know how to get that done. And Nissan’s counsel didn’t do it here.
The Court went on to hold Nissan can be liable for the third-party’s calls– the complaint alleged Nissan contracted with AW to make calls on its behalf– and that the calls might have been made willfully (!?) so enhanced damages are still on the table.
Plus the court rejected Nissan’s effort to strike the class allegations, so this was just a complete and total loss for Nissan. Really embarassing stuff.
Hey Nissan – I know you’re reading this. I’ll offer you FREE tickets to LCOC IV (in person or virtual) no strings attached! Just email me to request. Think you’ll find it valuable.
For the rest of you here are a list of take aways you might find valuable:
- Do not call numbers containing a 999-9999;
- Do not allow agents to enter 999-9999 as a predicate for wrong number or DNC requests;
- When faced with a CMW case, hire lawyers who know how to defend TCPA cases– particularly those involving repeat litigators;
- Be cautious what lead generators you are working with; and
- Attend Law Conference of Champions IV, hosted by David Stodolak, next week so you can be up to date on all the latest TCPA action!
Indeed I will be kicking off the show (after the keynote) with a TWO HOUR TCPA SESSION– my longest presentation in years. I will be diving into all the sexy fun nuances that make TCPA cases the most dangerous and high-stakes litigation imaginable (as Nissan just found out.)
See you all there.
Chat soon!
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0. If you require a phone number on your form in order for a consumer to proceed, the consumer will enter garbage. They then will be both relieved that you aren’t harassing him by voice call and annoyed that telephone is the only channel you’ll actually do business through.
We’re in the information age. With no human contact, one can poke the screen on their pocket computer and a pizza lands on their doorstep and a new release movie flows onto their TV.
If one wanted tickets on the RMS Titanic, they’ll tap it out in Morse on their telegraph key. Consumers will continue to enter garbage numbers because REACH killed 1:1 consent.
So, your argument is that if a bank has piles of cash in its vault, it wants to be robbed? The man listed his telephone number on the National Do Not Call Registry, and Nissan did not scrub its list. Then, Nissan initiated recorded robocalls to the man without prior express written consent. Seems to me that Nissan violated at least two regulations. It matters not whether the man has a “designer number.”
Yeah, volenti non fit injuria is entirely the wrong principle. A vanity number is more like an attractive nuisance. The popular example is a pool in a neighborhood that kids can’t resist enjoying.
It’s perfectly legal to have a pool. It’s also wrong, but understandable, for kids to be trespassing to the pool, so the pool owner incurs some liability unless he erects a fence. Say… publishes the pool on the do not swim list.
Marketing companies aren’t kids in a pool. They’re being paid to be professionals. Assuming any random pool someone shows them means permission to swim freely in that pool without independently verifying permission with the actual owner of that pool is non-professional conduct and should be punished.