Keeping your hands clean in TCPA litigation
- Peter Schneider
- Jul 24
- 7 min read
Credibility is always a potential issue in telephone consumer protection act litigation, and it often plays out in class action lawsuits during the certification process because the class representative(s) must be representative of the class.
TCPA lawsuit Morales v. Sunpath, 2025 WL 2020053 (D. De. July 11, 2025) illustrates the issue. Three plaintiffs brought a class action lawsuit against Sunpath Ltd. (“Sunpath”), Northcoast Warranty Services, Inc. (“Northcoast”), and Matrix Financial Services, LLC, alleging that they engaged in unlawful advertising and telemarketing of vehicle service contracts (“VSCs”).
Amtrust contracts with Sunpath to sell its VSCs under the terms of an Administration Agreement executed on April 15, 2013. The Administration Agreement authorizes Sunpath, as the administrator, to engage third-party VSC sellers (“Dealers”) for purposes of marketing and selling VSCs on behalf of Amtrust. These relationships are governed by Call Center Marketing Agreements (““CCMAs”). Sunpath is also party to an Administrator Agreement with Mepco, which processes payment plans for consumers who pay for their VSCs in installments pursuant to Payment Plan Agreements (“PPAs”). Ud, Ex. 9) Mepco also enters into Dealer Agreements with each Dealer to ensure that each customer who purchases a VSC is given the option of paying in installments. The VSCs provide that Amtrust’s subsidiary, Northcoast, is the party responsible to consumers for paying benefits under the VSCs.
One of the required elements of class action lawsuits is typicality - the class representatives must be typical of the class. The typicality requirement “guards against class representatives who have unique interests that might motivate them to litigate against or settle with the defendants in a way that prejudices the absentees.” The defendants raised the following challenges to each representative Plaintiff under the typicality and adequacy provisions of Rule 23:
The first line item - deceptive conduct - is the typical argument TCPA defendants make: you lied to find out who were are!
Defendants contend that the claims of Morales, Callier, and Horton are not typical of other class member claims because each representative Plaintiff feigned interest in buying a VSC to speak with a telemarketing agent. The declarations submitted by Morales, Callier, and Horton confirm that they responded to prerecorded calls by pressing “one” to connect with a sales agent for purposes of identifying the caller, even though they had no interest in purchasing a VSC. In support of their argument that this conduct renders the representative Plaintiffs atypical, Amtrust and Northcoast cite case authority holding that the claim of a representative plaintiff who poses as a customer “is inherently different tha[n] those of the putative class members who presumably did not use similarly deceitful methods” in the context of a TCPA action. Johansen v. Bluegreen Vacations Unlimited, Inc., 2021 WL 4973593, (S.D. Fla. Sept. 30, 2021).
As usual, it didn't work. Most patron saints of telemarketing don't cross this line easily:
The fact that some of those robocalls were made to “someone prepared to feign interest in their product to remove the mask of anonymity behind disembodied robocalls, has no bearing on whether he, and other members of the putative class, received illegal calls for which Defendants are liable.” Spurlark v. Dimension Serv. Corp., 2022 WL 2528098, at *7 (S.D. Ohio July 7, 2022). At least one case within the Third Circuit has acknowledged the practicality of feigning interest in a telemarketing solicitation because “[a] plaintiff must know the name of the telemarketer that violated the TCPA in order to bring suit against it, and the content of the message can help prove that it was a solicitation.” Shelton v. Nat'l Gas & Elec., LLC, 2019 WL 1506378, at *5 (E.D. Pa. Apr. 5, 2019) (denying motion to dismiss for lack of standing). The Shelton court distinguished this technique from more deceptive practices, such as “acquir[ing] phones to increase [the] chances of receiving calls,” which are not alleged in the instant case. Defendants also cite Callier and Horton’s history as TCPA plaintiffs to suggest that they have interests not shared by other class members and they may be subject to additional defenses. But the fact that a class representative is a serial TCPA plaintiff is not enough, by itself, to render the class representative atypical or inadequate. See Sapan v. Diamond Resorts Holdings, LLC, 2023 WL 8229984, (C.D. Cal. Oct. 6, 2023) (explaining that representative plaintiffs are not inadequate because they are serial litigants, but rather “because of unique facts that [are] related to their serial litigant status.”). A class representative’s TCPA litigation history adversely impacts the typicality and adequacy analyses only when it is accompanied by evidence showing the representative’s intentional abuse of the class action device. Id. [And this is the big holding it all built up to - feigning interest isn't manufacturing TCPA violations] There is no evidence that Callier or Horton . . . manufactured TCPA violations by seeking out phone calls
All that said, here is where the court did come after Mr. Callier. I have no idea if any of this is true or how important one of these factors was over the others, just that court used the allegations against him:
Defendants raise several other arguments challenging Callier’s typicality and adequacy as a class representative, citing his criminal history, his failure to disclose the TCPA litigation in his bankruptcy proceeding, his consent to receive phone calls prior to the allegedly illegal calls, and his purchase of two VSCs in his ex-wife’s name without her knowledge. When viewed collectively in conjunction with potential preclusion defenses, it is apparent that Callier is likely to be preoccupied with defenses unique to him and inapplicable to other members of the class.
It does underscore the fact that the appearance of impropriety is often a problem in serving as a TCPA class representative.
Bonus Material
Plaintiffs can lie to uncover who phone agents are calling for.
Fed. Trade Comm'n v. Lifewatch Inc., 176 F. Supp. 3d 757, 771 (N.D. Ill. 2016) (the plaintiff often misrepresented to telemarketers that the name “Lifewatch” appeared on her caller identification in order to elicit their connection to Lifewatch. “But the telemarketers' admissions are not rendered invalid just because Mey (successfully) tricked them into (truthfully) revealing that they sold products for Lifewatch.”)
Plaintiffs can pose as an interested consumer.
Mey v. Pintas et al, Case No 5:2024-cv-00055, (N.D WVA. May 17, 2024) (“the Federal Trade Commission and numerous courts have endorsed plaintiffs posing as interested consumers in order to identify the source of a call.”)
Using a fake name wouldn’t disqualify a plaintiff as a class representative.
Moser v. Health Ins. Innovations, Inc., 2019 U.S. Dist. LEXIS 132790, 2019 WL 3719889 (“the Court does not find that Plaintiff's willingness to use a name that was not his own to learn the identity of who was calling him amounts to a serious enough mark against his credibility to disqualify him as class representative”).
See also Clough v. Revenue Frontier, LLC, Case No. 17-cv-411-PB, (D.N.H. 2019) (“Although Clough did not owe any back federal or state taxes, he called the number from which the text was sent, provided a fake name, and feigned interest in the solicited services to identify the entity that called him . . . that he made misrepresentations when talking to NTE and other telemarketers after receiving the text message is not relevant to his contention that the defendants sent him the text message without his prior consent.””). and Mey v. Castle Law Grp. CIVIL ACTION NO. 5:19-CV-185, 6 (N.D.W. Va. Sep. 22, 2020) (“the Court finds that the defendants have failed to state claims for fraud. The basis of the fraud claim, that Mey misrepresented her interest in the qualification process "in order to trap the purported telemarketers into a lawsuit" is the type of conduct encouraged by the TCPA”) and Hossfeld v. Allstate Ins. Co., 726 F. Supp. 3d 852, 869 (N.D. Ill. 2024) (Granting partial summary judgment to TCPA plaintiff: “Hossfeld told caller his name was Michael Johnson . . . . Hossfeld introduced self as Michael Bradley. Told caller he was interested in a quote . . . Hossfeld gave the name Michael Bradley . . . Allstate points out that Hossfeld has . . . used pseudonyms, including Michael Johnson, in the past . . . , Allstate argues in a single sentence that "Hossfeld's participation in the calls far exceeded that necessary to investigate." . . . Allstate does not further develop this argument; it does not explain, for instance, what specifically was unnecessary about Hossfeld's conduct, which, based on the call transcripts and recordings, was consistent with Hossfeld's stated motive.”) and Shelton v. Nat’l Gas & Elec., LLC, CIVIL ACTION NO. 17-4063, 2019 U.S. Dist. LEXIS 59235 (E.D. Pa. April 5, 2019) (“The fact that he "play[s] along" with telemarketing scripts to "find out who [they] really are" is not as devious as Defendant suggests. A plaintiff must know the name of the telemarketer that violated the TCP A in order to bring suit against it, and the content of the message can help prove that it was a solicitation.”) and Javitch v. Simply Solar, 2020 U.S. Dist. LEXIS 266402, 2020 WL 13547896 (“the plaintiff met his burden by alleging that the defendant's representative called the plaintiff to confirm a fake name and address that the plaintiff had given during a robocall the day before”).
Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.
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