District Court Dismisses Ex-Attorney and TCPA Serial Litigant’s Claims with Prejudice

On January 6, 2021, the District of Maryland dismissed a TCPA claim (and a derivative claim under Maryland’s MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., No. 20-0008, 2021 WL 50922 (D. Md. Jan. 6, 2021). The decision is a helpful reminder that a number’s purpose can be a critical component of a TCPA claim and that defendants should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.

The court observed that the plaintiff—a former lawyer named Michael Worsham who was disbarred in 2015—is now a frequent pro se plaintiff. In this action, he alleged that Discount had violated Section 227(b) and (c) by making seven automated calls to a landline number that was on the National DNC Registry.

The court rejected both theories of liability. As for Worsham’s ATDS claim, the Court found that, although he had claimed in conclusory terms that the calls “were all initiated and made with an [ATDS] as defined by 47 U.S.C. § 227(a)(1),” he had alleged no facts from which a court conclude that that was actually the case. Worsham, 2021 WL 50922, at *3. And as for his DNC claim, the Court similarly found that he had not alleged that his number was a “residential” number within the meaning of Section 227(a). In a previous lawsuit, Worsham repeatedly asserted that the same number was his former law firm’s business line. “Where there is clear evidence that a cell phone line is used only or primarily as a business line,” the Court observed, “courts have granted summary judgment to the defendants.” Id. (citing Smith v. Truman Road Development, LLC, No. 18-0670, 2020 WL 2044730, at *11 (W.D. Mo. Apr. 28, 2020); Mattson v. Quicken Loans Inc., No. 18-0989, 2019 WL 7630856, at *5 (D. Or. Nov. 7, 2019)). Further, putting aside whether the number was “residential,” Worsham had not established that the number was appropriately listed on the DNC, such that telemarketing calls to the number would violate 47 C.F.R. § 64.1200(c)(2). The court noted that this number was publically available because it was registered with PACER and that business numbers are not permitted on the DNC. As such, there could be no violation of the TCPA or MDTCPA based on Worsham’s allegations.

Interestingly, Worsham also asserted that Discount had violated the TCPA and FCC regulation 47 C.F.R. § 64.1200(d)(4), which requires that telemarketers “provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and the telephone number or address at which the person or entity may be contacted.” The Court rejected this theory of liability as well, finding that there is no private right of action as to an alleged violation of 47 C.F.R. § 64.1200(d)(4), and by extension the MDTCPA. Worsham, 2021 WL 50922, at *4.

Amanda M. Pasquini

About the Author: Amanda M. Pasquini

Amanda Pasquini represents public and private clients in a variety of corporate and securities matters.

Zoë K. Wilhelm

About the Author: Zoë K. Wilhelm

Zoë Wilhelm advocates for her clients in consumer class actions and commercial litigation in California and in multiple jurisdictions throughout the country. Zoë is a co-leader of the firm’s consumer products and retail industry group, a partner liaison to the Associates Committee, and a member of the steering committee for Faegre Drinker Women. Zoë defends consumer class actions involving state and federal consumer protection laws such as the Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), False Advertising Law (FAL), California Gift Card Law, California Invasion of Privacy Act (CIPA), the Telephone Consumer Protection Act (TCPA). Zoë is well-versed in class action procedural issues and works with her clients to develop litigation strategies that incorporate their unique business concerns.

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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