BAD ARGUMENTS MAKE BAD LAW: Another Day, Another (Likely) Avoidable Defense MSJ Loss in a TCPA Class Action — And I Don’t Know What Office Depot Was Thinking

It is hard enough to win summary judgment in TCPA cases with valid arguments– but when you bulk up your motion with arguments that have no merit because binding case law forecloses them, you have no shot at all.

That is what happened in McGonigle v. Office Depot, 2026 WL 2597936 (S.D Fl. Aug. 14, 2026).

There Office Depot likely had a winning argument (or two) but they got lost in the shuffle of invalid arguments launched by their #biglaw counsel.

The Court started by rejected Rombough determining the plaintiff did not personally have to register his number on the DNC list to state a clai under 227(c). This is so despite the fact the applicable regulation grants a claim to an individual who has registered is number on the DNC. The Court determined anybody can assert a 227(c) claim if their number is on the DNC list regardless of how it got there.

Pause.

This ruling is not only contrary to the express language of the regulation it is contrary to common sense and First Amendment principles. Applying this analysis literally it would mean a person who hates marketers could simply register every number in America on the DNC list and companies would have to abide it. The ruling also runs contrary to Supreme Court authority to the effect that people can determine for themselves what speech they want to hear and not hear.

So why would the court reject Office Depot’s correct argument on this subject? Perhaps because OD lost credibility by raising other plainly incorrect arguments.

Consider– Office Depot argued that it had  a “good faith” defense that allowed it to call a wrong number based upon consent provided by a third party. But this argument was expressly rejected in the Eleventh Circuit decision in Breslow but apparently Office Depot’s counsel was unaware of that. The argument was so bad Office Depot apparently abandoned it completely and the Court rejected it as such.

But Office Depot’s mistakes didn’t stop there. It then argued Plaintiff lacked Article III standing because he was not harmed by the SMS messages– yet binding Eleventh Circuit authority is to the exact contrary. Once again the Court found the argument lacked merit because of binding authority.

Office Depot even asked the Court to reconsider its own previous finding that “texts are calls” but the court refused to change its mind from its earlier ruling on the subject despite more recent authority to the contrary.

The Court also rejected Defendant’s argument that the phone used by high-volume TCPA player McGonigle was merely used to set up TCPA lawsuits. The Court found this was a question of fact–which is interesting because it means a jury will need to decide how Plaintiff uses his cell phone. McGonigle could theoretically lose his suit on that basis– which likely means he is inadequate to represent a class of true residential cell phone users.

Not sure what Office Depot was thinking with a couple of these arguments (i.e. good faith defense and Article III). Those arguments had no chance and were frivolous given the binding case law on the subject. Likely ruined their chances on viable arguments– especially the Rombough argument. Still it will be interesting to see what happens with certification and trial in this one.

And it is nice to see OD fighting hard against a repeat player litigator like McGonigle.

Will keep an eye on this.

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