Second hand embarrassment for Telemarketer who files foolish MTD

For whatever reason, different types of lawsuits tend to get different types of attorneys. For example, many debt collection attorneys are, ahem, not what you'd call legal scholars.

Part of the reason is good attorneys don't want to work for debt collectors but that isn't really the entire reason. Debt collection companies don't need particularly sharp people to harass people and get default judgments, and they pay accordingly.

Often telemarketers will hire really sharp people to defend against TCPA lawsuits and it really is a necessity. Telemarketing law is very complex, is very nuanced, frequently changes, and crosses many legal fields. It isn't unusual for a partner in a large law firm to show up as the opposing attorney and they won't be dumb. Be weak in one area and your telemarketing client pays the price. Hire the wrong attorney and you can get the results Delfgauw got in that case I have been chronicling.

So when a 538 person law firm filed a cringey motion to dismiss in a TCPA lawsuit, of course I had to share. The case is Bradshaw v. CHW Group, 2025 WL 306783 (D. NJ Jan 24, 2025).

Dkt 12 BRADSHAW v CHW GROUP.pdf

Download PDF • 299KB

The problem isn't in how the motion to dismiss looks, it has all the polish New York lawyers are know for - a table of contents and six pages of authorities! It was the 26 pages of baloney writing that gave them away and got them pilloried by the judge in the ruling.

Dkt 20 BRADSHAW v CHW GROUP.pdf

Download PDF • 281KB

Nonsense:

As applied here, Plaintiff’s FAC still does not plausibly allege that CHW itself—as opposed to some third party—physically initiated each of the calls or texts at issue in this case

Pilloried:

At first glance, these allegations seem like a strong basis for attributing the December 8 call to the Defendant. After all, when a person introduces herself across the table as Olivia or Emma --- we generally conclude without much hesitation that is indeed who she is. So too as to the December 8 call. The caller allegedly introduced herself as “Erica . . . from [the Defendant].” Why then would it not be plausible to conclude that she was, in fact, “Erica . . . from [the Defendant]”?

Nonsense:

To avoid dismissal on this front, the FAC also “must include some factual allegations beyond ‘the call had a prerecorded voice.’

Pilloried:

Of the six Cabral boxes set out above, three are checked here. See Complaint ¶¶ 70-71 (allegations as to the December 8 call: providing instructions to call a 1-800 number; using a “robotic”-sounding delivery; and leaving a generic message). This suggests that the “prerecorded” element has been plausibly alleged. Moreover, the Plaintiff alleges that the voicemail that was left on December 8 “appear[ed] to start mid sentence[.]” See Complaint ¶ 71. This buttresses the conclusion that the message was prerecorded. People who place live calls and get voicemail (“You have reached . . .”) generally hear the concluding beep --- and only then start to leave their message. This generates voicemails that start at the beginning of a sentence, not in the middle of one.

Nonsense:

the FAC alleges, in a conclusory fashion and without adequate requisite factual support, that Plaintiff received calls and text messages, that he admits he originally solicited in the first place

Pilloried:

The Plaintiff alleges that he originally reached out to the Defendant. See Complaint ¶¶ 28-34. And then afterwards, he alleges, he asked to be placed on the Defendant’s do not call list --- and repeatedly requested that the Defendant stop contacting him. See id. ¶¶ 39, 60, 68. That clears the bar.

Nonsense:

Count II should be dismissed because there is no private cause of action for violations of the TCPA’s “internal” DNC regulations, which are only technical and procedural in nature. As one court noted, Section 64.1200(d) “was ... promulgated under [Section] 227(d), a subsection of the TCPA which does not provide a private cause of action,”

Pilloried:

The Third Circuit has not directly weighed in on this question. But federal courts around the country have --- with most courts holding that there is a private right of action.

Nonsense:

As applied here, Plaintiff’s scant allegations regarding CHW supposed lack of internal DNC policies and procedures—which still appear mostly in a single paragraph—are entirely conclusory and merely parrot the statutory text.

Pilloried:

The Plaintiff alleges that he was repeatedly contacted by the Defendant after asking to be placed on its do not call list, and after following up repeatedly to that effect. See Complaint ¶¶ 40-71. From this, the Plaintiff argues, it can plausibly be inferred that the Defendant violated the FCC regulation, because it failed to “implement[] internal procedures for maintaining a list of persons who request not to be called/texted by the entity and/or by implementing procedures that do not meet the minimum requirements to allow the Defendant to initiate telemarketing calls/text messages.” Id. ¶ 91. This argument has been accepted by any number of federal courts.

CHW's motion to dismiss may initially look intimidating, but it was mostly word salad that ignored the factual allegations in the complaint and the judge's ruling made them look dumb. But one party made out like bandits, CHW's attorneys. They probably charged CHW 10-20 grand for that silly motion.

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.