Get evidence your TCPA defendant is behind the call or your case may be dismissed

Did you know the patron saint of accountants is St. Matthew? And that the patron saint of locksmiths is Peter the Apostle? And that many a patron saint of telemarketers is a federal judge?

Why do I say this? Because many federal judges will say whatever is needed to look after a telemarketer and protect them from from harm even if they have to come to opposite conclusions in different cases. For example, in case Schwartz v. Bamz Enters., L.L.C., No. Case No: 1:23-cv-608, 2025 U.S. Dist. LEXIS 89794 (S.D. Ohio May 12, 2025), TCPA plaintiff Michael Schwartz received six telemarketing calls from persons pitching products Bamz Enterprises LLC sells, and on each call the caller identified themselves as calling from "Living Well Screening", a d/b/a for Bamz. One caller said he was calling from Florida, where Bamz is located. Unfortunately Mr. Schwartz didn't make a purchase from "Living Well Screening" or get an email or something undeniable, and Bamz denied making the phone calls and moved for summary judgment on the grounds that Mr. Schwartz didn't have any admissible evidence tying Bamz to the calls.

In support of its denial that the calls originated from Bamz or its agents, Defendant points to the sworn testimony of its officers to that effect. Defendant asserts that any express or implied statements made by the callers regarding their identity or association with Defendant were false.

The telephone agents said they were "Living Well Screening", selling a product Bamz sells, but the judge refused to let this evidence go to a jury, reasoning that telemarketers will say anything so their word is useless in court:

"unscrupulous telemarketers or scammers employ a variety of deceptive practices - including misrepresenting that they are affiliated with a government agency or a legitimate company or charity - in order to manipulate the person that they are calling." . . . “The Court cannot consider evidence at summary judgment that a jury could not consider at trial.” . . . Plaintiff offers no admissible evidence at all that the callers who claimed to be calling on behalf of “Living Well Screening” (1) truthfully stated the name of the entity with which they were affiliated; or (2) were actually employed by, affiliated with, or authorized by Defendant Bamz or its agents to make the calls on Defendant’s behalf.

This court granted Bamz's motion for summary judgment on the theory that telemarketing agents will misrepresent themselves in order to manipulate the person that they are calling and accordingly their words are not admissible at trial or at summary judgment. Gotcha!

Dkt 36 - Schwartz v Bamz Enters LLC.pdf

Download PDF • 160KB

But what if another federal judge in another case needs to draw the opposite conclusion to protect a different telemarketer? Not a problem to the patron saint of telemarketers, a federal judge. Consider case Delfgauw v. Barton 2025 WL 814484 (W.D. Wash. March 13, 2025). In this case there were recordings of an unknown telemarketer saying as part of the sales pitch “looks like you just responded from a text message we sent out to you.” To help this telemarketer, the federal judge needed to believe what the telemarketer said, so he just did! The telemarketers state that they are calling in response to Plaintiff's request for information, suggesting his consent to the call.

So which is it, patron saints of telemarketers? Is what the telemarketer says credible and admissible evidence that can be considered at summary judgment, or will telemarketers say anything to manipulate the person they are calling, and inadmissible hearsay? Or is it whatever the situation calls for to help the telemarketing defendant? Too many times it is latter option.

I'm actually ok with the Schwartz ruling because telemarketers are complete liars and you can't trust what they say. Just spend a few minutes on YouTube channel Take the Call to see telemarketers in action. My issue is with the patron saints of telemarketers choosing the outcome - defending the telemarketer - and believing what the telemarketer phone agent says if that is what's required.

Mr. Schwartz would have done well to read our guide on how to document TCPA violations for a lawsuit. Mr. Schwartz could have put the patron saints of telemarketers in a box by making a purchase, or wheedling an email or an electronic business card or something more concrete out of "Living Well Screening".

Patron saints of telemarketers and defense lawyers hate it, but more than ever TCPA plaintiffs need the guidance of experienced TCPA lawyers in how to build their case while the calls are coming in, to avoid outcomes like this.

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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