Category Archives: Professional Plaintiffs

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

September 26, 2023
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Automatic Telephone Dialing System, Professional Plaintiffs

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

July 28, 2023
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Automatic Telephone Dialing System, Professional Plaintiffs

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

June 26, 2023

Abusive Lawsuits, Professional Plaintiffs

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

April 13, 2023
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Do-Not-Call Rules, Exemptions, FCC, Professional Plaintiffs, Safe Harbor, Telemarketing

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

November 11, 2022
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Abusive Lawsuits, Counterclaim, Professional Plaintiffs, Text Messages

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

November 8, 2022
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Class Certification, Faxes, Professional Plaintiffs, Standing

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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Eleventh Circuit Denies Petition for Rehearing, Permits Split Decision Barring Incentive Awards to Stand

August 15, 2022
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Professional Plaintiffs, Settlements

The Eleventh Circuit recently decided not to rehear en banc a panel decision which held that a TCPA class action settlement could not include an incentive award for the lead plaintiff.  See Johnson v. NPAS Sols., LLC, No. 18-12344, 2022 WL 3083717 (11th Cir. Aug. 3, 2022).

The matter arose from a putative class action complaint, which alleged that defendant NPAS Solutions, a medical debt collection company, violated the TCPA by repeatedly robocalling plaintiffs to collect debts that did not actually belong to them.  The lead plaintiff in the case, Charles Johnson, retained counsel and was actively engaged in the litigation, including negotiations that resulted in a $1.432 million class settlement.

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The Losses Mount for a Serial TCPA Plaintiff

April 5, 2022

Consent, Established Business Relationship, Junk Fax Prevention Act, Prior Express Consent, Professional Plaintiffs

In an ever-growing string of losses, the Seventh Circuit affirmed the Northern District of Indiana in denying class certification to serial TCPA plaintiff Gorss Motels, Inc. in Gorss Motels, Inc. v. Brigadoon Fitness, Inc., — F.4th —, 2022 WL 872639 (7th Cir. 2022).

The fact pattern in the present matter is consistent with the other cases Gorss Motels has filed, and the basic fact pattern can be found here. In the present case, Gorss Motels sued a franchisor-approved vendor, Brigadoon Fitness, Inc., for sending a fax advertisement for deals on fitness equipment. Gorss Motels was denied certification for a class of all recipients of this fax, Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 331 F.R.D. 335 (N.D. Ind. 2019), which was denied again on reconsideration, Gorss Motels, Inc. v. Brigadoon Fitness, Inc., No. 1:16-CV-330-HAB, 2019 WL 5692168 (N.D. Ind. Nov. 4, 2019).

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Auto Service Contractor Not Subject to Court’s Jurisdiction in Texas Resident’s TCPA Claim, Holds State’s Federal Northern District

March 22, 2021
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Jurisdiction, Professional Plaintiffs, Telemarketing, Vicarious Liability

The Northern District of Texas handed down a decision exploring the jurisdictional limitations on TCPA plaintiffs’ ability to hale out-of-state defendants into a plaintiff’s local federal court.

The case, Horton v. Sunpath, Ltd., involved a Texas resident (Lucas Horton) who launched a TCPA suit against a Massachusetts-based corporation (Sunpath).  Horton alleged that Sunpath’s agent, Northcoast Warranty Services, placed several calls to his cell phone using an automatic telephone dialing system and pre-recorded messages, despite the number’s listing on the National Do-Not Call Registry.  No. 3:20-cv-1884-B-BH, 2021 WL 982344, at *1 (N.D. Tex. Feb. 16, 2021).  On the calls, Horton stated, Northcoast encouraged him to purchase an auto service policy administered by Sunpath.  Id.  The calls continued for about three months until Horton purchased a policy from Sunpath in May 2020.  Id.  Horton filed suit against Sunpath about a month later in the Northern District of Texas.  Id.

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Eastern District of Texas Holds that Professional TCPA Litigant Can Face Counterclaims for Fraud

February 15, 2021
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Abusive Lawsuits, Counterclaim, Professional Plaintiffs

A federal magistrate judge in the Eastern District of Texas recently addressed a question of first impression for the jurisdiction: Can professional plaintiffs who manufacture TCPA claims face counterclaims for fraud brought by the defendant in an abusive lawsuit? According to the magistrate and the district judge that adopted her recommendation, the answer is yes.

In Cunningham v. USA Auto Protection, LLC, the plaintiff—professional litigant Craig Cunningham—alleged that defendant USA Auto Protection (USA Auto) made over twenty telemarketing calls to Cunningham’s cell phone without his consent. Case No. 4:20-cv-142, 2021 WL 434243, at *1 (E.D. Tex. Jan. 8, 2021).

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