Last year, this blog analyzed whether and when professional plaintiffs have standing to assert TCPA claims. A Massachusetts District Court recently examined that issue and held that a plaintiff’s standing “boils down to” how a plaintiff uses a given phone line.
In Rhodes v. Liberty Power Holdings, LLC, No. 18-10506, 2019 WL 4645524 (D. Mass. Sept. 24, 2019), the Court examined TCPA claims brought by two representatives of a putative class. One of them, Samuel Katz (“Katz”), fits the profile of a professional plaintiff, as he is a “frequent litigant in TCPA cases” who “closely tracks the telemarketing calls he receives.” Katz has served over two dozen TCPA demand letters and has filed at least nine TCPA lawsuits. In the present matter, he alleges that he received thirteen automated calls to a “residential landline that he maintained for emergencies.”
Defendants moved for summary judgment as to Katz’s claims, asserting that he is a professional plaintiff and thus lacks standing. Specifically, Defendants argued that Katz did not fall within the zone of interests protected by the TCPA because “he proactively embraces telemarketing calls and simply makes money from the statute,” which is inconsistent with the purpose of the TCPA.
Defendants’ summary judgment motion as to Katz was denied. The court opined that, “[a]lthough telemarketing calls may not truly be a scourge for Mr. Katz, who has turned the calls into a financial opportunity, the issue of Mr. Katz’s standing boils down to whether he maintained the number [at-issue] … for any purpose other than attracting telemarketing calls to support his TCPA lawsuits.” The court found that the phone line at issue “was not, at least according to Mr. Katz, maintained solely for the purpose of filing TCPA lawsuits.” The decision did not disclose, however, whether there was any evidence other than Katz’s own statements in support of Katz’s claim that he kept the landline for the purpose of emergency calls.
Thus, the Rhodes court applied the reasoning found in the heavily-cited Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782 (W.D. Pa. 2016) decision, wherein the court held that a professional plaintiff did not have standing in large part due to the fact that the plaintiff’s “only purpose in using her cell phones is to file TCPA lawsuits.” See also Morris v. Hornet Corp., No. 17- 0350, 2018 WL 4781263 (E.D. Tex. Sept. 14, 2018) (denying motion for summary judgment because plaintiff did not own the phone “purely for the purpose of filing TCPA lawsuits.”). Thus, in the court’s view, Katz met the exceedingly low bar of showing that the phone line at issue existed for purposes other than attracting telemarketing calls, allowing him to survive a summary judgment motion on the issue of standing.
Notably, in Cunningham v. Florio, No. 17-0839, 2018 WL 4473792 (E.D. Tex. Aug. 6, 2018), in which the defendants argued that the claims had been brought by a professional plaintiff, the Court did not examine whether the phone line was used solely to provide a factual basis for TCPA claims. Instead, in the context of a motion to dismiss, the Eastern District of Texas held that, “at this early stage of litigation,” it could not rule on whether plaintiff had suffered a true nuisance or invasion of privacy.
As a result of the Rhodes decision and others like it, in professional plaintiff cases, defendants may wish to explore, at the earliest possible opportunity, whether or not the phone line(s) at issue are maintained for any purpose other than receiving automated calls to then use as a basis for TCPA litigation. Additionally, consistent with decisions such as Cunningham, Defendants also may wish to assert that, despite the fact that a plaintiff may have maintained the at-issue phone line for purposes other than receiving automated calls, a professional plaintiff does not have standing because the plaintiff did not suffer any nuisance or invasion of privacy, and was in fact overjoyed to receive an errant telemarketing call. A seemingly bright line test, turning solely on the purpose for which the phone line exists, does not appear to be the most logical (or the fairest for that matter) test for determining whether or not the plaintiff suffered concrete harm sufficient to establish standing to assert a TCPA violation.