Huge win today against a guy with two first names.
David Tom saw his TCPA dreams go down the drain in a class action suit against DeLancey Street Group, and he may have changed the direction of TCPAWorld history in so doing. Looks like he was trying to set up a TCPA suit and the court saw right through it–throwing the case out and creating some very positive case law for defendants while he was at it.
Tom was on our podcast a while back and said he basically delighted in putting small businesses out of business– so let’s just say I am not rooting for him.
David “If He Dies He Dies” Tom suffered a big loss
In Tom v. DeLancey 2026 WL 2255107 (E.D.N.Y. Aug. 5, 2026) Defendant allegedly sent Tom a message reading “Hi, it’s John with MCA Justice. Would it help if we cut your daily/weekly payments by 80% and convert to monthly? Reply ‘Yes’ for more information[.] Text STOP to opt out[.]”
Rather than reply “stop” like a normal person would do, Tom replied “yes” and then sued when DeLancey continued to text him.
DeLancey moved to dismiss arguing Tom had not received two telephone solicitations in violation of the TCPA’s DNC rules. The court reserved analysis on whether texts are calls and whether cell phones are residential lines for DNC purposes but granted the motion to dismiss finding Plaintiff had only received one unconsented message. All messages received after he replied “yes” were obviously sent with prior invitiation or permission and were, thus, perfectly legal.
Importantly plaintiff claimed he opted out of further messages when he responded “Don’t text me email me only– about to board a plane no cell signal so WiFi works a lot better[.]” The Court rejected this claimed opt out because: i) it did not use the word STOP as directed; and ii) in context the message seemed to imply only that he wanted to receive email messages during the duration of his flight– this was not a total revocation request. Plus the defendant did stop texting within 4 days– which is within the 10 day safeharbor.
It gets better.
Plaintiff also argued the texts violated the TCPA because they did not include a caller ID– but the court was simply unmoved here. The Court followed what it deemed to be the “majority position” and found “this Court is persuaded by the majority approach, which finds there is no private right of action given § 64.1601(e)(1)’s silence on the matter. See Meyer, 2017 WL 5138316, at *17 (citing Ziglar v. Abbasi, 582 U.S. 120, 133, (2017)).”
Booyah.
Just an huge win.
Notice though this is a true bad facts make bad law scenario for the plaintiff. The dude literally responded “yes” to a message and then sent a transparent set up revocation request that the court saw right through. They he tried to argue a lack of caller ID– yet Tom clearly knew who was texting him. So he was just trying to hang Defendant out on technicalities after he invited the additional contact with his initial “yes.”
Bad bad bad.
No wonder the court tossed this one.
Huge win for the defense side though– we’ll take it!
Speaking of wins– have you checked out Episode 44 of the Deserve to Win Podcast with the Sonera guys yet? We break down a bunch of key TCPA developments. You really should give it a watch.
Chat soon!
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