TCPA defendants often assert, in either a motion to dismiss or answer (or both), that a plaintiff gave prior express consent to receive the calls or text messages at issue. But it is the exceptional case where a defendant actually files a counterclaim against a plaintiff on this ground. Rarer still is the case where a plaintiff then moves to dismiss that counterclaim. This series of events is precisely what occurred, however, in Estrada v. Aragon Advertising, LLC, et al., No. 4:23-3407, 2024 WL 5059166 (S.D. Tex. Dec. 10, 2024).
Plaintiff Nelson Estrada (Plaintiff) filed a putative class action claiming TCPA violations by Defendants Aragon Advertising, LLC (Aragon) and Python Leads, LLC (Python) (collectively, “Defendants”). Plaintiff alleged that Aragon bought leads from lead generators, including Python, to obtain consumer contact information, and then Defendants made prerecorded telemarketing calls to people who had never consented, had no established business relationship with Defendants, and/or had placed their numbers on the national do-not-call registry.
Aragon and Python each filed counterclaims on the ground that Plaintiff had provided prior express consent to be called. What’s more, they alleged that Plaintiff had used a fake name and feigned interest in Defendants’ products and services solely to generate additional calls, which he intended to use to extract a higher settlement for his “manufactured” suit. All of this, Defendants argued, caused them to expend employee time and resources, and also to pay attorney’s fees and costs. Accordingly, Defendants asserted claims for common law fraud and fraud by nondisclosure.
Plaintiff moved to dismiss Python’s counterclaim, arguing that (1) the court lacked subject matter jurisdiction; (2) Python failed to state a claim for relief; and (3) the counterclaims violated the Texas Citizens Participation Act.
The court denied the motion. First, it determined that it had supplemental jurisdiction over the counterclaims because the allegations arose out of the same common nucleus of operative facts as those in Plaintiff’s Complaint.
Second, the court rejected Plaintiff’s pleading challenge. Plaintiff had argued that expending employee time and resources were not sufficient allegations to support the element of detrimental reliance for a fraud claim, as these were “general business activities.” The court disagreed, citing a 2019 Texas federal court decision (which we previously wrote about here) to conclude that employee time and company resources expended in reliance on an alleged misrepresentation suffice to successfully plead detrimental reliance. Plaintiff did not offer any reason to deviate from this ruling.
Third, the court relied on Fifth Circuit precedent to conclude that the framework under the Texas Citizens Participation Act (Texas’ anti-SLAPP statute) does not apply in federal court.
In Estrada, Python not only pushed back — it bit back. It did not merely assert consent as an affirmative defense; rather, it filed a counterclaim against Plaintiff seeking damages for its detrimental reliance on Plaintiff’s potentially fraudulent consent. Although not every case will warrant such a strategy, Estrada provides a useful reminder for TCPA defendants to consider potential counterclaims. This is especially true in Texas federal courts, where defendants have had success against plaintiffs who appear to be capitalizing on alleged TCPA violations.
