WHOSE NUMBER IS IT?: Michele and Justin Nelson May Both Be Claiming to Own a Phone Number to Set Up TCPA Suits–But This Could Set Up a Major “Called Party” Showdown

Earlier this week we covered the story of repeat-litigator scumbag Chet Wilson being outed as a crazed racist lunatic.

Well now we have another story involving repeat TCPA litigators who may be engaging in their own scumbag behavior.

Michele and Justin Nelson are a married couple who enjoy filing TCPA lawsuits.

According to a new filing the couple has filed a dozen such lawsuits– and most interestingly appear to be swapping claims of owning phone numbers in order to set up the lawsuits.

In a new filing in Nelson v. Whaleco, Case 1:26-cv-11333-WGY (D. Mass.) Whaleco claims the Nelsons play fast and loose with their claims (See Doc. 15 MTD.) Per the brief:

Mr. Nelson identifies two different “residential” cell numbers. In this case
and six others, Mr. Nelson alleges that his “personal residential phone number” is “(517) 769-
XXX” (i.e., the Number) and that he “personally pays for this cell phone plan” for his “personal
use.” (Compl. ¶¶ 9-11, 13; Exs. V ¶¶ 9-11, 13; W ¶¶ 9-11, 13; X ¶¶ 21-23, 25; AA ¶¶ 9-11, 13;
BB ¶¶ 15-17, 19; CC ¶¶ 12-14, 16.) But in two cases, he gives a different cell phone number
“(517) 750-XXXX” as his line that is for his “personal use only.” (Exs. Y ¶¶ 9-11; Z ¶¶ 12-15.)

The Nelsons alternate who is the Number’s subscriber. In this case and seven
others, Mr. Nelson claims to be “the subscriber” of the Number. (Compl. ¶ 9; Exs. U ¶ 10; V
¶ 9; W ¶ 9; X ¶ 21; AA ¶ 9; BB ¶ 15; CC ¶ 12.) Elsewhere, Mr. Nelson alleges that the Number
is one his “Spouse uses . . . for personal use only” (Ex. U ¶¶ 10-11), and Mrs. Nelson alleges that
the Number is her “personal residential telephone number.” (Ex. S ¶¶ 8-10.) Mr. Nelson also
has admitted in a declaration that his wife has used the Number. (Ex. DD at ¶ 9.)

Now perhaps these statements are not so different as they seem– it is conceivable Mr. Nelson subscribes to the number but Ms. Nelson uses it regularly. Under prevailing case law BOTH would then have standing to sue– but only ONE might be the “called party” capable of providing consent.

But before we get there Whaleco asserts these allegations demonstrate Mr. Nelson lacks Article III standing– he did not suffer an injury in fact. We’ll see how that goes– I am not so sure.

Whaleco also argues the SMS messages at issue are not “telephone calls” for DNC purposes– a great argument and one that has not yet been decided in D. Mass (would be a CRITICAL win for the defense here since Paronich often practices in that jurisdiction and this appears to be a great case for such a ruling given the facts.)

But the key issue here is the “called party” argument around consent.

At Law Conference of Champions IV I gave the whole background here and if you missed it– you missed it (but you can watch a recap here.). But they key point is courts have interpreted “called party” to mean “subscriber”– and that means a caller must have a subscriber’s consent to make calls to a phone, not the user’s.

Here Mr. Nelson appears to claim he is the subcriber. Yet it was apparently Mrs. Nelson who used the phone.

Assuming Mr. Nelson has standing– an issue to be determined by the court– he might have a valid claim even if his wife consented because of the “called party” limitation.

Now the First Circuit has never determined who the “called party” is– so there’s another opportunity for good case law here. Let’s see what Whaleco does with it.

Bottom line I will be paying very close attention to this one to see where it all ends up.

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Chat soon.