Avoid the TKO - defending against summary judgement in telemarketing lawsuits

If the TCPA plaintiff doesn't ask for much, many telemarketers will settle quickly. But some want to fight every lawsuit, and if the settlement cost is too high, they may also decide to fight it out.

This strategy is not unreasonable because many pro se TCPA plaintiffs don't really know how to get their claims all the way to and through a trial, so a lot of defendants are going to see that as the cheaper option over an expensive settlement. They may rightfully decide they can fight it out during discovery and win on a motion for summary judgement the TCPA plaintiff won't know how to fight off. For example not responding at all to a defendant's summary judgment motion with respect to a claim may abandon said claim. Jenkins v. County of Riverside, 398 F.3d 1093, 1094 (9th Cir. 2005)

So lets learn and step up our game with federal TCPA lawsuit Dobronski v. Fortis Payment Systems, LLC. Plaintiff Mark W. Dobronski brought the action against defendant Fortis Payment Systems, LLC, advancing claims for eight telemarketing phone calls made in June through August 2023, in violation of the Telephone Consumer Protection Act (TCPA), the Michigan Home Solicitation Sales Act (MHSSA), and the Florida Telephone Solicitation Act (FTSA).

Defendant Fortis moved for summary judgment on four of six claims. That Fortis:

(1) disconnected unanswered telemarketing calls, in violation of 47 C.F.R. § 64.1200(a)(6) (count I); (2) failed to have a live agent available to speak with him after he answered, in violation of 47 C.F.R. § 64.1200(a)(7)(i) (count II); (3) made telephone solicitations to a residential subscriber on the national do-not-call list, in violation of 47 C.F.R. §§ 64.1200(c)(2) and (d)(3) (counts III and IV) and Mich. Comp. Laws § 445.111a(5) (count V); and (4) made various violations of the FTSA (count VI).

DOBRONSKI v FORTIS PAYMENT SYSTEMS Dkt 20.pdf

Download PDF • 332KB

Dobronski went on to lose several claims that, while I didn't pull the underlying briefing, were defendable in some universe. The first count the court went after was 47 C.F.R. § 64.1200(a)(6), which prohibits “[d]isconnect[ing] an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.” Dobronski asserted that calls 4, 5, and 6 violated the regulation because Fortis prematurely disconnected before the call was answered. Dobronski alleges that each call rang only twice before it was disconnected and offered a call log detailing the call durations.

Here is where Fortis got Dobronski on this one.

Fortis contends that Dobronski’s call log is of unknown origin and contains conclusory, unsupported statements. This argument essentially amounts to an authentication challenge. “The Court cannot consider evidence at summary judgment that a jury could not consider at trial,” including evidence that has not been properly authenticated. Thomas v. Abercrombie & Fitch Co., 301 F. Supp. 3d 749, 754 (E.D. Mich. 2018). The authentication requirement compels a proponent to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). While the requirement is not demanding, “the evidence used to support a finding that the item is what the proponent claims it is must, itself, be admissible; in particular, it cannot be hearsay.” J.A.T. of Fort Wayne Inc. v. Secura Ins. Co., 706 F. Supp. 3d 787, 799 (E.D. Mich. 2023)

It appears that Dobronski created the call log "the slightly inconsistent formatting of the document raises a concern that Dobronski compiled the list himself" but Dobronski himself said "in an affidavit that the document was “obtained from [his] telephone service provider.”" If true, Dobronski would have needed an affidavit from his phone company showing his call log was a business record such that it was an exception from the hearsay rule and he didn't do it. "Thus, the Court declines to consider Dobronski’s call log."

Dobronski would have been better off if he had created a log from his own observations of the calls, and even better if he had recordings. Then he could have created a fact issue and held off summary judgment on this claim.

Then Fortis moved to Count 2, violations of 47 C.F.R. § 64.1200(a)(7), which prohibits telemarketers from “[a]bandon[ing] more than three percent of all telemarketing calls that are answered live by a person, as measured over a 30-day period for a single calling campaign.” A call is “‘abandoned’ if it is not connected to a live sales representative within two (2) seconds of the called person’s completed greeting.” If a sales representative is unavailable, the telemarketer must provide:

(A) A prerecorded identification and opt-out message that is limited to disclosing that the call was for “telemarketing purposes” and states the name of the business, entity, or individual on whose behalf the call was placed, and a telephone number for such business, entity, or individual that permits the called person to make a do-not-call request, and (B) An automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make a do-not-call request prior to terminating the call, including brief explanatory instructions on how to use such mechanism.

Dobronski alleged that calls 2, 3, and 7 violated this regulation because Fortis hung up when he answered rather than connecting him to a live sales representative. Fortis argued that Dobronski’s pleadings are inadequate because he alleges only that a live sales agent was unavailable but not that Fortis failed to provide a prerecorded message or an automated opt-out mechanism. The court said:

Fortis’s call log shows the following call durations: [call duration table] Those durations are longer than would be expected if Fortis had hung up just after Dobronski answered. It is true that the calls could be deemed “abandoned” under the statute had Dobronski answered and been met with dead air for 27 to 55 seconds before Fortis hung up. See 47 C.F.R. § 64.1200(a)(7). But Dobronski offers no evidence that this is what occurred. Nor has he offered any evidence that the calls were disconnected without a prerecorded message or an automated opt-out mechanism, as he may not rely on his unverified complaint at the summary judgment stage.

The Dobronski offers no evidence part comes up because Dobronski didn't provide testimony supporting his argument. All he needed was a declaration ["properly executed affidavits can defeat summary judgment" McKinney v. Henson, 1:23-cv-113, (W.D. Mich. Feb. 14, 2024)], but Fortis beat him down with:

“the movant may meet the initial burden by pointing out to the court that the nonmoving party, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case, and on which that party will bear the burden of proof at trial.” That is, “a motion for summary judgment is a means by which to challenge the opposing party to ‘put up or shut up’ on a critical issue.” Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995)

Then Fortis moved to Counts 3 & 4, your basic DNC violation statute and making solicitation calls without maintaining a do-not-call list:

assert violations of regulations regarding the national do-not-call list. Chapter 47 C.F.R. §§ 64.1200(c)(2) prohibits telephone solicitations to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government.” Subsection 64.1200(d) prohibits callers from making “any call for telemarketing purposes to a residential telephone subscriber” unless the caller “has instituted procedures for maintaining a list of persons who request not to receive such calls.” 47 C.F.R. § 64.1200(d) (cleaned up). The required procedures include recording a subscriber’s name and telephone number if that person requests not to receive calls from the telemarketer. § 64.1200(d)(3).

The gist of Fortis's argument was that it obtained Dobronski's number through a federal firearms listing maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. And that Dobronski owns a business called Auto Arms, which holds a federal firearms license and is on some list maintained by the ATF. "Fortis obtained and called that number from the publicly available FFLs."

This argument went Dobronski's way for reasons other mixed use telephone number users should pay attention to.

He maintains his license to perform “custom gunsmith activities for long-time friends and acquaintances from the law enforcement sector, and those activities are performed on a gratis basis beyond reimbursement for miscellaneous out-of-pocket expenses.” Dobronski states that he does not advertise Auto Arms or list it in any directories. And he provided his phone number to ATF because it was required on the license renewal application. Viewed in favor of Dobronski, this evidence would support a finding that the phone line was residential. And the license is not used in connection with an active business, as Dobronski only completes a few projects for close friends and does not charge for his services. The non-governmental websites listing Auto Arms’ phone number may have acquired the information the same way that Fortis did—through the FFLs. There is no evidence that Dobronski personally advertised the phone number for business purposes.

I won't go into much detail on Court V because that is a state claim I know little about, Dobronski's residency was made an issue and again Dobronski didn't provide evidence via a declaration so Fortis won summary judgment on this count. What can we learn from this? We can create evidence via declarations and call recordings.

The above were the magistrate judge's recommendations, which will almost always be rubber stamped by the district judge. And they were, except that the judge went after a claim Fortis hadn't challenged - that Fortis had received a request to stop calling and didn't.

Similar to Count VI, if Plaintiff cannot show, beyond the allegations in the Complaint, that the Defendant received a request not to call, Plaintiff’s claims must fail.

This should have been addressed in discovery. If there are elements of a plaintiff's TCPA claim that the plaintiff has the burden of proof on (so everything but consent), by the end of discovery that plaintiff better have obtained evidence on all the elements at the end of discovery.

DOBRONSKI v FORTIS PAYMENT SYSTEMS Dkt 23.pdf

Download PDF • 281KB

Some pro se TCPA plaintiffs assume that a defendant will settle the case before trial, but that isn't always going to happen, and the higher the settlement demand, the more likely a defendant is to go the distance. Smart pro se TCPA plaintiffs will prepare and prosecute their case such that they can go to trial.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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