TCPA plaintiff came to court with massive overreach. Judge poised to spank it.
- Peter Schneider
- 13 hours ago
- 5 min read
What a week. First the massive unforced error that is Mr. Wilson, and now this. But this post isn't here to criticize the plaintiff, the TCPA was written to encourage average citizens to come to court to combat abusive telemarketing practices and judges who hate the citizens often want to make public examples out of them and that isn't right. That said, I don't want more people to make the same mistake. The mistake being how narrow courts want to define the 47 CFR § 64.1200(f)(15) term telephone solicitation:
The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person
It seems to me that Congress chose "encouraging" as widely encompassing word, but that isn't what judges want so many Courts have worked hard to narrow telephone solicitation down. Court is literally the judge of what words mean so like it or not plaintiffs have to work with what judges allow.
So when this plaintiff got two text messages "Your Wonder verification code is 041797" and "Your Wonder verification code is 475599" and sued under the theory that these were telephone solicitation a more experienced litigant could have predicted it wouldn't end well and it didn't. I'm not bad with words and I can't make a cogent argument as to how these two messages are telephone solicitation a federal judge would buy. This plaintiff got creative but not in a good way.
These were not neutral or random codes; they were unexplained prompt messages from an entity Plaintiff never heard of. This subterfuge was a ploy deliberately used by Defendant as unexplained prompts that gave the recipient no context and forced him to search for meaning. In doing so, the recipient is exposed [sic] the Defendant's business operations and offerings (The Website) in a marketing effort, to encourage Plaintiff to invest in the defendants property, goods or services.
The argument as I understand it is that these text messages were some sort of gorilla marketing, causing the recipient to dig into who was behind it so the recipient would get to the target website and buy something. I am pro-consumer and I scratch my head at this particular theory. So did the judge.
Plaintiff has failed to allege any facts that would allow the Court to draw the inference that the Verification Texts were a marketing ploy or advertisements. The Verification Texts did not even include a link to any website, making this an even clearer call than the fax that the Third Circuit considered in Mauthe and determined was not an advertisement. Without such facts, Plaintiff's claims cannot stand. The Court, finding that amendment would be futile, will DISMISS Counts I and IV of the Amended Complaint with prejudice.
But here is where the plaintiff opened the door to getting spanked. The plaintiff had brought this claim in the original complaint, and the judge dismissed it with leave to amend, and instructions:
The Court described at length in the MTD Opinion what it would take for Plaintiff to do that. MTD Op. at 9-10. For example, the Court highlighted that "[a]dvertising is the action of drawing the public's attention to something to promote its sale," and that at a minimum, Plaintiff must show the Verification Texts "directly or indirectly inform[ed] [him] the sender or some other entity sells something of value." Mauthe, 767 F. App'x at 248-49. The Court then outlined how Plaintiff fell short of meeting this standard, including because the Verification Texts did not promote goods or services to be bought or sold (or suggest that Defendant sold anything of value), and because Plaintiff could not rely on the theory that the unsolicited messages were deliberately designed to invite him to research Defendant's products. MTD Op. at 9-10. Despite this explicit guidance, Plaintiff has brought these claims again without providing any substantively new allegations or legal theories that would allow the Court "under any reasonable reading of the complaint" to conclude that he may be entitled to relief. Cnty. of Allegheny, 515 F.3d at 233. Put simply, no allegations come close to showing how the Verification Texts are advertisements under the TCPA. Indeed, after reviewing the Amended Complaint Redline, it appears Plaintiff includes only two new allegations relevant to this issue: (1) that "each message contained a 'Wonder Verification Code' and directed Plaintiff to engage with Defendant's website and services[,]"; and (2) the Verification Texts "were 'telephone solicitations' within the meaning of 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(15) because they encouraged Plaintiff to purchase or use Defendant's goods or services [,]" Clearly, the Verification Texts do not explicitly direct Plaintiff to engage with Defendant's website and services. There is no mention of Wonder's website or that Wonder sells anything of value. Nor do the Verification Texts promote any goods or services to be sold or "encourage" Plaintiff to use Defendant's goods or services. Put differently, paragraphs 59 and 60 of the Amended Complaint lack factual support.
Now this sort of thing happens all the time with actual lawyers and judges ignore 99.99% of it, so when the judge goes after this pro-se plaintiff the court is skipping over many, many similar attorney filings to get to him. [T]he Court has the "inherent power to sanction an offending ... party for bad faith conduct."
Plaintiff has included two new baseless allegations in his Amended Complaint: (1) that "each message contained a 'Wonder Verification Code' and directed Plaintiff to engage with Defendant's website and services[,]" and (2) the Verification Texts "were 'telephone solicitations' within the meaning of 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(15) because they encouraged Plaintiff to purchase or use Defendant's goods or services[,]" In addition, Plaintiff has repackaged a legal argument the Court explicitly rejected (the "trojan horse" theory), and provides no legal authority to support his position. See Opp'n. As explained supra, these allegations are plainly incorrect and belied by the language of the Verification Texts. Moreover, Plaintiff's contention that the Verification Texts were "a ploy deliberately used by Defendant as unexplained prompts that gave the recipient no context and forced him to search for meaning," Opp'n at 5, was already rejected by the Court.
What is motivating this court to single out a pro-se for something actual attorneys do all the time? I guess you will have to be the judge of that, but don't think a judge is going to let you do something that is routine for lawyers. Your not a lawyer and a lot of judges are itching to get at you so be careful.
The Court will ORDER Plaintiff to SHOW CAUSE why he should not be sanctioned for his conduct—namely, filing the Amended Complaint with patently inaccurate allegations and advancing legal theories explicitly rejected by the Court in this action without any legal authority to support his position.
You need to be better than a lawyer. You need to know the rules and follow them even when the lawyers in your court don't and the judge turns a blind eye to it.
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Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.