Counterclaims against TCPA plaintiffs is the new normal - how to deal with them and turn them in your favor
- Peter Schneider
- Dec 12, 2024
- 8 min read
Updated: Jul 3
As long as there have been TCPA lawsuits, defendants have been cycling back and forth between countersuing and not countersuing the plaintiffs. Defendants - particularly the unsophisticated - see countersuits as an easy way to scare off or create leverage against TCPA plaintiffs.
Unscrupulous defense attorneys love them because it will roughly double the defense side attorney fees.
*** Edited 7/3/2025 - well the new normal faded quickly. Reflexive countersuits is a fad that seems to have passed quickly.
Here is the bottom line of TCPA countersuits - they don't work against experienced litigants, and inexperienced litigants aren't a threat. A defendant may initially feel good employing it but after it doesn't work, the defendant is left with twice the high costs of litigation and just handed the plaintiff a huge weapon to hammer him with at trial.
Let's cover a few basics. What does a counterclaim look like? In Estrada v. Aragon, 2024 WL 5059166, the TCPA plaintiff sued two defendants. The complaint was written by a lawyer and looks pretty typical.
Both defendants were represented by the same attorney and both filed similar sounding counterclaims.
I've seen enough TCPA counterclaims to know this one was very representative of many:
XVII. FACTS
26. Plaintiff is a serial TCPA litigant who repeatedly files lawsuits and engages different area law firms. A PACER search suggests he has filed another TCPA case with a different law firm a month prior to filing the instant case.1
27. In this case, on or around November 16, 2022, Plaintiff or his designee visited https://securemedicareenrollment.com and gave prior express consent to call his telephone number, (281) XXX-0200. In reliance on such express content, PYTHON contacted Plaintiff.
28. The contact information provided by Plaintiff or his alter ego or his designee on the https://securemedicareenrollment.com website included the name of “Sam Smith,” but the phone number provided was unmistakably Plaintiff’s (281) XXX-0200 phone number.
29. Using the fake name of “Sam Smith,” Plaintiff accurately provided his phone number in order to purposefully and intentionally receive these “unwanted” phone calls.
30. The IP address associated with that website opt-in is tied to an Internet connected device in Houston, Texas.
31. On information and belief, the only person who benefited from the phone calls at issue was Plaintiff himself.
32. On information and belief, Plaintiff, his alter ego “Sam Smith”, or his designee provided this information so that Plaintiff would receive calls so that he could claim the calls were unwanted, even though no other person would benefit.
33. The form on https://securemedicareenrollment.com also included a click-box to establish the user’s consent to receive phone calls and/or text messages by automated technology or artificial or pre-recorded calls. This box was checked for Plaintiff’s opt-in, and thus prior express consent was provided for parties to use automated technology to place phone calls, text messages, or prerecorded voice calls to Plaintiff’s (281) XXX-0200 phone number.
34. After receiving prior express consent to call Plaintiff’s phone number, Plaintiff began receiving calls on or about November 16, 2022.
35. Upon information and belief, Plaintiff would pretend to be interested in certain products and services, thereby driving up the call count that he would use to extract a higher settlement payout for his manufactured TCPA claim.
36. Upon information and belief, Plaintiff either falsely identified himself as “Sam Smith” on the opt-in form, or had another person, a “Sam Smith” or otherwise, complete the opt-in form on his behalf to prompt calls to him.
37. Plaintiff therefore knew, before filing this suit on September 12, 2023 that either he or some third party on his behalf, had opted-in to receive phone calls at (281) XXX-0200, the very same phone calls that serve as the basis of his Complaint against PYTHON.
38. On information and belief, this was a setup made under false pretenses.
39. Plaintiff knew that he opted in to receive phone calls, and that businesses like PYTHON would rely on that TCPA-compliant opt-in to place phone calls to his number.
40. Plaintiff intentionally failed to simply ask to stop the phone calls he was receiving in order to drive up his perceived case value and then filed suit falsely claiming that the phone calls were unsolicited in his broader campaign to collect money under false pretenses via his TCPA claims.
41. PYTHON reasonably relied on the fact that the user of phone number (281) XXX- 0020 had consented to receive phone calls, and that Plaintiff continued to want to receive callbacks by continuing to act interested.
42. PYTHON took actions based on Plaintiff’s consent and fake, continued interest to including incurring costs for employee time, telemarketing services, obtaining leads, and resources.
43. In addition, PYTHON has now been required to engage attorneys and incur costs associated with defending against Plaintiff’s spurious and fraudulently induced lawsuit—all based on its reasonable reliance on Plaintiff’s consent to receive phone calls.
The only "fact" in their counterclaim not copied from a handbook is the allegation that the IP address supposedly used to ask for the calls came from a geographical region near the plaintiff. This geographical connection is probably meaningless, the entities who create these fake opt ins are very sophisticated. They have no problem using VPN exit nodes or renting servers in major cities of the area code they are fake opting in.
This IP address is almost certainly a dead end commercial server service and not a residential address. The plaintiff tried to get the counterclaim dismissed and was not successful.
So why don't experienced TCPA plaintiffs freak out at the thought of a countersuit? First, the burden of proof in fraud claims is clear and convincing evidence. An IP address that doesn't trace back to anyone isn't evidence Mr. Estrada did anything wrong. The fake opt in was for a "Sam Smith". When the telemarketer called Mr. Estrada asking for "Sam Smith", an experienced TCPA litigant should try responding back with "who's calling", not "yes I am Sam Smith" at least until he/she knows the telemarketer will hang up if he/she doesn't.
Telemarketer's don't always care who answers the phone. Further, Estrada got 60+ calls. Most experienced TCPA plaintiffs would have/should/could have worked a do-not-call request in there somewhere. That would have made the defendants' counterclaims much harder in this lawsuit.
In any lawsuit, a plaintiff should ask "what are the damages"? What are Python's damages? In Washington State where I live, attorney fees are not damages in a fraud action. Are they literally suing for $5-10 in damages?
But in Washington, attorney fees and costs are not recoverable unless a contract, statute, or ground in equity expressly authorizes their recovery. See City of Seattle v. Hammon, 131 Wn.App. 801, 805 (2006) (“‘Attorney fees are recoverable only when authorized by a private agreement of the parties, by statute or a recognized ground of equity.'” (quoting State v. Keeney, 112 Wn.2d 140, 142 (1989)); Johnson v. Horizon Fisheries, LLC, 148 Wn.App. 628, 633 (2009) (“Under the ‘American rule' followed in Washington, litigation costs are only recoverable when authorized by statute, rule, or case law.”). Lido Labs fails to cite any authority permitting it to recover attorney fees and costs under these circumstances. Walker-Schaut v. Lido Labs. Holding Co., C23-5944 BHS, 3 (W.D. Wash. Sep. 26, 2024)
An experienced TCPA litigant isn't going out asking for calls so the defendant can only prove their case via character assassination and what TCPA defense attorneys will tell you privately behind closed doors is, BS counterclaims just don't work. I haven't seen one work and I don't know of a defense attorney who made one work in court via character assassination.
How would an experienced TCPA litigant likely handle the Estrada counterclaim?
Ask for all the information related to this opt-in - the IP address it came from, the date and time of the opt in, all information about the device that cause the opt in (screen resolution, operating system, browser name and version, device fingerprint, the Jornaya (or equivalent) information and opt in video, previous opt ins or visits from this same IP address, everything. There are usually a lot of Easter eggs in the results - a device the plaintiff doesn't own, the phone number and other personal information being entered instantaneously, information being typed in, deleted out, and different information retyped leading to other fake opt-ins, an opt in done at a time the plaintiff wasn't in a position to do it, many opt-ins from the same IP address, you name it.
Issue subpoenas to the IP address owner for the date in question. I've never seen a defendant issue a subpoena for this information which tells you everything right their - they know the subpoena results won't point to the plaintiff so they prefer to not have the subpoena results at all.
Usually the IP address is going to directly map back to a log-less VPN or a service like Cloudflare, and it will be a dead end. Now the plaintiff can put the monkey on the defendant's back by attesting under oath that the plaintiff has not used that VPN or that computer server. The defendant has the burden of proof on the opt in, so they then have to tie the plaintiff to that IP address or lose the element.
In most venues, interrogatories are limited. A counterclaim just doubled the interrogatories. This allows more lines of questioning and more follow up questions.
After beating down the counterclaim, the defendant is going to look like a bastard in front of the jury, the same people who decide the "up to $500" of 227(c) claims.
I always look at who is bringing the counterclaims. The defense attorney, no offence, doesn't look like a TCPA expert. That isn't a knock, TCPA is very complex and nuanced and this guy probably doesn't know it as well as an experienced TCPA plaintiff. That can create opportunities later in the litigation.
I don't think any TCPA plaintiffs would volunteer for a counterclaim but I don't know any who have done the right things to build a case and are dissuaded by one. They are a rite of passage and an opportunity to take a dumb defendant to the woodshed. At the same time neophyte or living on the edge TCPA plaintiffs need to be wary of a counterclaim. Take the extreme example in Healthcare, Inc. v. Doyle, 2025 WL 1094309 (D. Az April 11, 2025).
Originally Mr. Doyle sued Healthcare Inc. in New Jersey for unwanted pre-recorded call TCPA violations. Healthcare claimed they didn't call the phone number in Doyle's complaint. For reasons I don't know, Doyle dismissed the lawsuit in New Jersey and refiled in Arizona but otherwise using the same allegations.
Some eight months later Doyle advised Healthcare he had listed the wrong phone number in all previous complaints. From the new phone number Healthcare believed Doyle had not been called with pre-recorded voice, and of course was sure "someone filled out a Form with that phone number and Doyle’s first and last name".
Also for reasons I am not sure of, Doyle's case hinged on pre-recorded voice (maybe he only received one call?) so eventually dismissed the lawsuit with prejudice. Healthcare turned around and sued Doyle
seeking to compel arbitration and in the alternative seeking damages, attorneys’ fees, and costs stemming from defending itself against Doyle’s lawsuits. HCIS asserts claims of breach of contract, breach of implied covenant of good faith and fair dealing, fraud and/or fraudulent misrepresentation, negligent misrepresentation, and malicious prosecution. In addition to the compensatory and punitive damages sought therein, HCIS also seeks to recover attorneys’ fees incurred in responding to Doyle’s Arizona complaint
I don't know what really happened in this case, but filing a TCPA lawsuit over one or two calls is living on the edge, and making incorrect claims about the called number and the nature of the call (real voice vs artificial or pre-recorded voice) is living on the edge.
It is better to have fewer cases with more calls and much stronger claims than many weak cases.
I hope you now know more about why TCPA counterclaims are the new normal. 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.
Comments