TCPA QUICK HITTER: Court Dismissed Claim for Lack of Standing Where Plaintiff Consented and Tried to Manufacture Harm –

The World of the Telephone Consumer Protection Act
Real quick, great standing case out of Atlanta earlier this month I forgot to cover.
In Hall v. Xanadu the Defendant moved to dismiss on standing grounds arguing that the Plaintiff had consented to receive the texts at issue. Normally this is not a proper argument because consent is a substantive issue and NOT a standing issue. But if it works it works.
And it did.
The Court in Hall found the Plaintiff did not dispute via a declaration providing consent. And since the motion was a factual attack on standing the Court determined Defendant was entitled to a W and dismissed the action.
Nice work!
One of the most interesting pieces of the ruling, however, is the Court’s observation that spending time determining who sent the texts and/or researching how to stop them–as if that wasn’t obvious–is not a form of harm: a Plaintiff cannot “manufacture” standing in this way per the Court.
Very interesting, no?
Decision here for the interested: 2023-07-06 (0034) ORDER GRANTING Defendant Xanadu Marketing Incs 25 Amended Motion to Dismiss
The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.
Lot’s of goodies in this case!! And a link to boot – stylin’ – good job bro!
Deep dive, from the defendants Amended MTD (Doc #25):
p 12 “But Plaintiff could not possibly have suffered any harm from this alleged (but untrue) hyper-technical violation. Houses Into Homes sent the text messages to Plaintiff from a short
code that was identifiably registered under its name.”
WTF!?!?!? So the victim is obligated to (attempt) to track down the short code user name; and the fact it shows a short code as an origin # implies the caller identified themselves???
p 12 “The text messages sent to Plaintiff enabled her to immediately respond “STOP” to the short code that sent the messages, which then automatically transmitted her message to the sender and opted her out of receiving additional messages.”
Implying these particular text messages are special by allowing immediate response??
SMS marketing is premised on the (sad but true) fact texts get opened almost immediately…
p 12-13 “And, as evident in Defendant’s records, Plaintiff indeed texted “STOP” within seconds of receiving the texts she asked for and was then immediately placed on the Do Not Call list. In fact, she responded “STOP” in the same minute she received at least two of the text messages.”
So injury is based on the amount of time one takes to respond to a series of texts? Is one injured after 1 minute? 10 minutes? 60 minutes? Yeah, yeah, Salcedo and all that but come on now.
This is what defense attys have created…turning the original intent of Congress on its ass – by nit-picking details – yeah I know ‘that’s what they do’…who cares if the ATDS used specific software/code??? I still got an un-consented robocall damn it!!!!
Flip side:
Seems she filled out a form at 5:08 am using her real name and info, then again at 5:08 a second form changing only her name, then a third form (also at 5:08 am) using name from second form BUT a different IP address (using a VPN to obscure her location?)
Lesson to be learned…if you’re gonna get up BEFORE the crack-o-dawn to manufacture TCPA suits by cranking out multiple consent forms (three within 60 seconds!?), have a friggin’ cup of coffee first!!
Cannot miss this…
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