Category - "Professional Plaintiffs"

Python Bites Back: Counterclaims Based on Alleged Consent Survive Plaintiff’s Motion to Dismiss

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.

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N.C. Federal Court Casts Doubt on Extraterritorial Reach of State Telemarketing Statute

The Middle District of North Carolina recently denied, in part, a motion seeking dismissal of serial TCPA plaintiff Craig Cunningham’s complaint alleging violations of the TCPA and the North Carolina Telephone Solicitations Act (NCTSA). See Cunningham v. Wallace & Graham, P.A., et al., No. 1:24-cv-00221 (M.D.N.C. Nov. 19, 2024). The court suggested that the NCTSA probably does not apply extraterritorially but ultimately denied defendants’ motion to dismiss the NCTSA claim because the parties did not brief the issue.

In Wallace & Graham, plaintiff alleged that he received initial calls from an agent of Sokolove Law, LLC (Sokolove), asking if he was interested in pursuing a claim against the government for toxic exposures that occurred at Marine Corps Base Camp Lejeune (despite the fact that plaintiff allegedly never worked at Camp Lejeune).

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Third Circuit Affirms Dismissal of List-Mode TCPA Claims

In an unpublished opinion, the United States Court of Appeals for the Third Circuit recently affirmed the dismissal of a “list-mode” theory of liability that had been advanced by prolific professional plaintiff Andrew Perrong. Perrong v. Montgomery Cnty. Democratic Comm., No. 23-2415, 2024 WL 1651274, 2024 U.S. App. LEXIS 9238 (3d Cir. Apr. 8, 2024) (unpublished).

Defendants (including the local committee of the Democratic Party) allegedly called Perrong, addressing him by name and urging him to vote for Democratic candidates in his county’s general elections. Perrong argued that the defendants had used an ATDS—and by doing so had violated the TCPA—because their equipment had allegedly used a number generator to determine the order in which to call phone numbers from a stored list of previously compiled voters.

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Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the purpose of filing a TCPA lawsuit. Despite the adverse ruling on the facts presented, the court recognized that a factual attack on standing may succeed at the pleading stage if a defendant can adduce conclusive facts to show that plaintiff welcomed the relevant phone call. Defendants facing TCPA lawsuits from professional or serial plaintiffs should take note of this decision.

Facts

In Simpson v. J.G. Wentworth Co., plaintiff claimed that he received a telemarketing call on his cell phone from Digital Media Solutions (DMS) on behalf of J.G. Wentworth in July 2022. 2024 WL 245992 (M.D. Fla. Jan. 23, 2024). Simpson’s cell phone number was registered on the National Do Not Call Registry at the time of the alleged call, which opened with a pre-recorded voice message that didn’t identify the caller. Simpson remained on the line and eventually spoke with a person who identified himself as being from J.G. Wentworth. Afterwards, Simpson sued J.G. Wentworth and DMS for purported violations of the TCPA and the Florida Telephone Solicitation Act (FTSA).

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Another Day, Another ATDS Suit Dismissed in E.D. Pa.

Plaintiff Andrew Perrong is no stranger to the Eastern District of Pennsylvania, and on September 18, 2023, yet another of Perrong’s suits was partially dismissed on ATDS grounds.  Perrong v. Bradford, et al., No. 2:23-cv-00510, 2023 WL 6119281 (E.D. Pa. Sept. 18, 2023).  You can read our prior coverage of Perrong decisions here and here.

In this instance, Perrong filed a TCPA action against Pennsylvania House of Representatives member Matthew Bradford; he later filed an Amended Complaint adding Cleo Communications, LLC, which placed the calls on behalf of Representative Bradford.  Perrong alleged that in 2019 and 2020, he received five phone calls, four of which were not answered or were answered to dead air.  A fifth phone call included a recording of Representative Bradford, inviting Perrong to participate in a virtual information session on opportunities to connect Pennsylvanians to healthcare coverage.  Perrong asserted three TCPA claims against Representative Bradford and Cleo Communications: the placing of a prerecorded message, use of an ATDS, and the placing of a telemarketing call.

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E.D. Pa. Dismisses Serial Plaintiff’s TCPA Case on ATDS Grounds

On July 18, 2023, the United States District Court for the Eastern District of Pennsylvania dismissed a TCPA claim filed by serial Plaintiff, Andrew Perrong.  Perrong v. Montgomery Cnty. Democratic Comm., No. 22-4475, 2023 WL 4600423 (E.D. Pa. July 18, 2023). You can read our prior coverage of Perrong decisions here and here.

The present case centers around three phone calls Perrong received from the Montgomery County Democratic Committee and its associates. Perrong claimed that Defendants violated the TCPA by using an ATDS to contact him. The Defendants moved to dismiss the case, arguing that Perrong’s complaint failed to state a claim because the device at issue randomly or sequentially dialed phone numbers from a preexisting list (such as a list of registered voters), rather than randomly producing phone numbers itself, and therefore did not qualify as an automatic telephone dialing system.

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Court Rejects Habitual TCPA Plaintiff’s Procedural Gamesmanship

In a recent condemnation of procedural “gamesmanship of the lowest order,” District Judge Michael M. Baylson not only denied a plaintiff’s request for a default judgment and for sanctions, but also sua sponte ordered the plaintiff to show cause why sanctions should not be issued against him.  The case is Perrong v. DVD II Group, LLC, 2023 WL 3229934 (E.D. Pa. May 3, 2023).

Plaintiff Andrew Perrong, who the court described as “a habitual litigant with extensive familiarity with the TCPA and court proceedings,” filed a TCPA action against Defendants DVD II Group, LLC and Kevin Knasel.  Mr. Perrong hired a process server, who successfully served Defendants on March 13, giving them until April 3 to respond according to the federal rules.

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Texas District Court Rejects “Influence Liability” Workaround to FCC Exemption for Research and Surveys

A recent decision from the U.S. District Court for the Northern District of Texas reaffirms the FCC’s interpretation that calls and text messages regarding consumer surveys and other market research do not qualify as restricted “telephone solicitations” or “telemarketing” under the TCPA or its implementing regulations.  Although the outcome in this case is a positive development, organizations that engage in these types of communications should continue to monitor and assess the state of the law in other jurisdictions.

In Hunsinger v. Dynata LLC, the plaintiff was a serial pro se TCPA litigant whose phone number was registered on the FCC’s national do-not-call list at all relevant times.  No. 22-cv-136-G-BT, 2023 WL 2377481, at *1 (N.D. Tex. Feb. 7, 2023).  Mr. Hunsinger alleged that he received a single call from an unidentified caller asking him to visit Dynata’s website.  Id.  Hunsinger thereafter sent a letter demanding a copy of Dynata’s DNC policy, but Dynata declined and argued that Hunsinger had no legal basis for his demand.  Id.  Hunsinger claimed that he directed Dynata to place his number on its internal DNC list but that he subsequently received a single SMS text message that contained a link to another website affiliated with Dynata.  Id. at *2.

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DNJ Enters Default Judgment on Breach of Contract Counterclaim in Manufactured TCPA Lawsuit

The United States District Court of New Jersey recently granted default judgment to Defendant Slack Technologies (“Defendant”) for its breach of contract counterclaim against Plaintiff Gino D’Ottavio (“Plaintiff”), who deliberately sent himself over 1,500 text messages but represented that the texts were unsolicited and sent improperly by Defendant.

In D’Ottavio v. Slack Technologies, No. 1:18-cv-09082-NLH-AMD, 2022 WL 15442211 (D. N.J. Oct. 26, 2022), Plaintiff filed a lawsuit against Defendant for allegedly knowingly and/or willfully and negligently violating the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Plaintiff asserted he received numerous unsolicited text messages after signing up for Defendant’s service. Defendant denied Plaintiff’s claims and asserted that Plaintiff abused a feature on Defendant’s website. Defendant specifically asserted, “Plaintiff is a serial filer of TCPA claims who personally solicited 1,590 text messages from Defendant by entering his own phone number and clicking a ‘SEND LINK’ button in an effort to manufacture a lawsuit.” Defendant brought four counterclaims against Plaintiff: (1) willful and wanton misconduct; (2) common-law fraud; (3) breach of express contract; and (4) breach of the implied covenant of good faith and fair dealing.

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Second Circuit Reaffirms that Solicited Faxes are Not Subject to Certain TCPA Protections, Grants Judgment Suggested by Defendant

The Second Circuit recently affirmed a Southern District of New York judgment denying injunctive relief against Educational Testing Service (“ETS”), which was sought by serial TCPA-plaintiff, Bais Yaakov of Spring Valley.  See Bais Yaakov of Spring Valley v. Educational Testing Service, No. 21-399-cv, No. 21-541-cv, 2022 WL 6543814 (2d Cir. Oct. 31, 2022).

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