Fighting Off Garbage Counterclaims in TCPA Lawsuits: A Comprehensive Guide
- Peter Schneider
- May 7
- 5 min read
Updated: Sep 24
Telemarketing is a lifeline for many businesses. However, it also opens the door to them picking up lawsuits under the Telephone Consumer Protection Act (TCPA) which of course they don't like.
A popular YouTube channel take the call documents unsolicited calls and exposes the sellers responsible. The take the call creator often encounters the same offenders, who get repeatedly sued and they often try playing dirty to frighten off future TCPA lawsuits. In previous discussions, we've noted how certain TCPA violators utilize counterclaims as a tactic to evade responsibility for their unsolicited calls.
This is part of our long running series of articles about preventing problems and dealing with counterclaims.
Case Study: Navient's Response to TCPA Litigation
Navient, a student loan servicer, might not appear as a frequent TCPA offender at first glance. Yet from 2017 to 2019, a collective of lawyers targeted Navient with TCPA lawsuits, causing them significant financial costs. In retaliation, Navient filed a lawsuit against these lawyers, debt-relief businesses, and marketers, alleging a RICO conspiracy. They claimed the defendants had "lured" numerous student borrowers into initiating sham lawsuits against Navient for TCPA violations.
A sham lawsuit is a fake legal case presented in court. These cases lack legitimate claims or justifiable reasons for suing. Essentially, it's akin to pretending to play a game without following the rules. Such lawsuits waste valuable time and resources, undermining the fairness of the legal system.
A misguided judge allowed the case to proceed to trial, resulting in a jury's favorable verdict for Navient. However, post-trial, the judge reassessed the situation and overturned the jury's decision. He eventually recognized that the only damages Navient requested at trial were solely due to the TCPA litigation. Navient subsequently appealed to the Fourth Circuit, which upheld the trial court's decision in Navient Solutions, LLC v. Jeff Lohman, 2025 WL 1299003 (4th Cir. 2025). The Fourth Circuit's opinion is rich with insights and rulings that could protect future TCPA plaintiffs from similar predicaments.
Accusations and Counterclaims
Navient's accusations against the RICO defendants echoed familiar sentiments I've heard from other TCPA defendants. They asserted there was a mail and wire fraud conspiracy aimed at holding TCPA defendants accountable for their unsolicited calls. These supposed conspiracies entailed TCPA plaintiff's attorneys coaching their clients on how to construct their cases. In the Navient litigation, once a case was crafted, the RICO defendants pursued Navient for TCPA violations—a common pattern we see in representation.
Valid legal claims should not expose plaintiffs or their counsel to harassment retaliation claims under the Noerr–Pennington doctrine. This doctrine protects individuals from antitrust liability for legitimate government petitions. However, it includes a "sham exception" for instances of bad faith where repetitive, unfounded claims exploit judicial processes.
The Noerr-Pennington doctrine grants antitrust immunity to private parties petitioning government entities for legislation or rulings. It protects collective lobbying efforts but offers no protection for petitions lacking legitimate purposes, designed solely to disrupt a competitor's operations.
The ruling in Navient presents a compelling argument against abusive RICO counterclaims. As the court articulated, [because] the TCPA litigation was not sham litigation, there was no legal foundation for awarding damages to Navient.
“A classic example of sham litigation involves filing frivolous objections against a competitor's license application. These objections are filed not with the intention of denying the license but rather to impose unnecessary expense and delay.”
Ultimately, the Fourth Circuit affirmed the dismissal of the jury verdict against the RICO defendants, as they had not engaged in sham litigation. Their claims held plausibility. The RICO defendants possessed sufficient resources to mount a defense and ultimately emerged victorious. If the Fourth Circuit had ruled otherwise, it could have paved the way for unscrupulous businesses to lodge harmful counterclaims against consumers.
An Advanced Technique
Often telemarketing callers start by asking if they have reached a specific person. In lawsuit Anthony v. F.S.B., 2022 U.S. Dist. LEXIS 58998, 2022 WL 972305 they were looking for a "Needle Dee". FSB alleged that when their agent called Mr. Anthony asking for Needle Dee, that Mr. Anthony said that was he. When Mr. Anthony sued, FSB came at him with a counterclaim, alleging Mr. Anthony went on a website and entered his own phone number and the fake name "Needle Dee". And they used Mr. Anthony's answering to Needle Dee against him.
This can usually be avoided. When a caller asks "Is this Needle Dee" try coming back with "may I ask who's calling". Usually this gets past the issue all together, and you don't have to identify your name at all.
Mr. Anthony saved himself a lot of trouble with what he did do.
Once Anthony had identified the company behind the call, Anthony called Moe back and left him a voicemail instructing the Bank to stop calling his number ending in x555. Moe called Anthony back and, this time around, Anthony explained that "his phone number was registered on the Do Not Call Registry, that he was not Needle Dee, and ... he had received numerous unwanted calls to this phone from or on behalf of FSB seeking to speak to Needle Dee." Anthony asked Moe how his phone number had been obtained; Moe responded that the Bank hired third-party companies, such as FDE, to "generate calls and transfer them to Defendants." Anthony also spoke to Moe's managers at the Bank, Matt. O and Maggie D. Anthony told them that "he should never have been called and that he was seeking to be removed from all of their lists and not be contacted again." Despite that instruction, the Bank called Anthony (at the x555 number) four more times on April 15, 2021; the Bank again called from the 833-362-4786 number.
Because this put the bank squarely on the hook for the four calls where the bank knew for sure Mr. Anthony didn't want the calls.
Anthony is correct that the Bank's fraud claim cannot apply to the four phone calls that the Bank made after Anthony made clear that he was not Needle Dee and that he did not want to be contacted by the Bank. At that point, the Bank knew Anthony's name was not Needle Dee, so there was no false statement (that is, it is true that Anthony's name is not Needle Dee) on which the Bank could rely. What's more, before the final four calls were made, Anthony had told the Bank not to call him. Again, the Bank could not rely on the purported consent that Anthony (acting as Needle Dee, in the Bank's version of events) had given to receive phone calls.
This quick thinking by Mr. Anthony saved the class action. Anthony v. F.S.B., 2025 U.S. Dist. LEXIS 186806, 2025 LX 405217
Protecting Yourself from Counterclaims
For individuals without deep financial resources, it is essential to approach litigation with counterclaim resistance in mind. The Fourth Circuit's decision serves as a valuable tool for TCPA plaintiffs defending against frivolous counterclaims. By navigating the legal landscape with care, plaintiffs can minimize the risk of drawn-out litigation battles and focus on recovering from unwanted calls.
If you have questions about telemarketing, debt collection, or bankruptcy issues that could inspire a blog post, reach out to us. We may even review your pro-se complaint or motion in a blog entry. Email peter@nwdebtresolution.com or nathen@nwdebtresolution.com and we'll do our best to address your queries for the benefit of all!
Seeking Help Against Harassment
Are you facing harassment from telemarketers in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice is here to assist you. Don't hesitate to call us at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions, and musings expressed in this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. These reflections are not legal advice. For assistance with filing a lawsuit related to TCPA violations and unwanted calls, please contact me for a consultation.
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