TCPA Plaintiff Elzen is done. Don't be like TCPA Plaintiff Elzen
- Peter Schneider
- 14 hours ago
- 11 min read
Updated: 4 hours ago
Before I get started, I want to make clear I don't know the actual truth of this case. I don't know that Mr. Elzen did anything wrong. But in the legal system it is sufficient that he looks like he did wrong. The case is Elzen v. Am. Home Shield Corp., No. 24-C-1206, 2026 LX 121277 (E.D. Wis. Apr. 21, 2026).
TCPA plaintiffs need to be better than this on multiple levels or their credibility is destroyed and bad law is made. Two dumb TCPA plaintiffs, first Mr. Johansen and now Mr. Elzen, did tremendous damage to one of the best consumer protection statutes out there, the telephone consumer protection act.
What does the TCPA defense bar want?
Filing a TCPA lawsuit is itself evidence of fraud
The TCPA plaintiff has to prove he/she didn't ask for the calls
The recipients of unwanted calls have the obligation to make them stop
Telemarketers can use leads with impunity so long as they don't have actual knowledge the lead is fraudulent.
Get rid of express written consent.
The judges who love telemarketers use these Elzen and Johansen type cases to move the ball forward to achieve these goals.
And these Elzen and Johansen cases are worse because they were both represented by big name plaintiff attorneys who should know better than push cases that will result in bad law. If you push cases like this it will destroy your credibility and make bad law. As you read further the judge uses the fact that Mr. Van Elzen had sued about 12 telemarketers over a period of about 10 years - 1.2 cases a year - against him. All the 'facts' reported in this article come from the court filings and are assumed to be true for the sake of the story. I have no knowledge of the actual truth of any of this.
Mr. Van Elzen sued American Home Shield over four text messages. The first thanked him for requesting information about AHS home warranties. The second encouraged Mr. Van Elzen to reach out to AHS when he wanted more information about AHS home warranties. A third asked Mr. Van Elzen if he was still interested in an AHS home warranty. And the fourth asked Mr. Van Elzen if it was still ok to text Mr. Van Elzen about AHS home warranties. Mr. Van Elzen didn't respond to any of them.
AHS had a forensic analysis of Mr. Van Elzen's computer done and AHS alleged:
the extensive discovery AHS conducted in the case establishes that Plaintiff took his laptop computer to an IT professional shortly before filing his lawsuit; and that the forensic analysis of his computer that AHS paid to have performed revealed that records of his website visits were deleted, and that some of the records that the forensic analyst was able to recover showed that around the same time the online form requesting AHS to contact him was submitted, Plaintiff was visiting similar types of websites offering information on home-related products and services.
If you are a TCPA plaintiff there is a list of things you can't do and keep your credibility. Deleting evidence is near the top of the list. Resisting discovery is above that:
AHS notes that Plaintiff resisted AHS's efforts to obtain basic discovery about his browsing history. Plaintiff's browsing history was clearly relevant in light of the fact that AHS's defense was that it received Plaintiff's name, address, and phone number via an online submission on AHS's website, which requested to be contacted with more information about AHS's home warranty products. Plaintiff insisted he had never made such a request, yet he opposed AHS's request to view his relevant browser history on the two devices (his cell phone and home computer) he used to access the internet during the relevant time period. After extensive efforts, the two devices were inspected by a third-party expert, using a mutually agreed-upon protocol that included search terms relevant to the case. After counsel for Plaintiff withheld the bulk of the search results, AHS filed a motion to compel, which the court granted.
If a TCPA defendant claims the plaintiff asked for the calls on a website, the TCPA plaintiff should demand the defendant examine all his devices to take that argument away from them. The TCPA plaintiff should put in writing that the defendant can subpoena the plaintiff's ISP records without a objection (outside of normal protective orders limiting the scope of the request and information dissemination).
TCPA plaintiffs can't go off visiting random dodgy websites because if they do, this happens. myhomequote.com wasn't the alleged opt in website, but if you get calls for tax services and you visited any tax service websites, the judge will claim that's evidence you wanted tax services and you probably opted in on a different tax service website in your quest for tax services. Since Mr. Van Elzen apparently went to a website that sold home warranties, the judge just assumed Mr. Van Elzen must have visited the website that AHS alleged Mr. Van Elzen to have asked for the calls on.
According to Michael Perry, the forensic analyst who examined the devices, his inspection revealed a web visit to myhomequote.com on August 19, 2024. Perry Decl., Ex. C at [*8] 2, Dkt. No. 41-3. Perry's inspection also revealed that items associated with the internet browsing history had been deleted from the laptop on or around September 16, 2024, the same day Plaintiff took his laptop to a local IT vendor. Perry Decl., ¶ 11, Dkt. No. 41; Loose Decl., Ex. P, Van Elzen Dep. at 91:07-09, Dkt. No. 39-16. Some of the deleted items were recoverable because they had been moved to, but not yet permanently purged from, the Windows Recycle Bin.
If there wasn't any data deleted on Mr. Van Elzen's computer [not saying it happened, just saying the Court was able to say it happened], the court still probably would have cast aspersions at him but it would have made the judge's job of creating his own narrative harder.
Now, with what Mr. Perry supposedly found the story gets even less appetizing:
Perry's analysis of the deleted items located spreadsheets in the Recycle Bin that reflected web activity from August 2024, which included visits to websites such as homebuddy.com. Both myhomequote.com and homebuddy.com are websites that offer home improvement products and services of a similar nature as AHS provides and invite visitors to provide their name, email address, and telephone number and consent to receive text and telephone calls from vendors as a condition of receiving an estimate. Moreover, the myhomequote.com website lists AHS among its partners. AHS notes that this browsing history shows "visits to third-party lead-generation sites in August 2024 that are consistent with a consumer path that could have directed a user to AHS's site." [There is every possibility that whoever runs these or other websites took Mr. Van Elzen's information and created a fake opt in. In my legal practice I see it all the time. But this isn't the narrative a judge is probably going to go with.]
And what story did Mr. Van Elzen create to cover all this? And when did Mr. Van Elzen's lawyers know this?
[Mr. Van Elzen] denied knowledge of how or why internet history files were deleted to the recycle bin but speculated that if anyone created the files it would have been the IT vender. When the IT vender was deposed, however, he denied creating or deleting any files and testified that he essentially provided Plaintiff information about how to access his internet history in connection with his lawsuit.
Let's say Mr. Van Elzen is innocent of asking for the calls but is just a dummy who visits the junk websites that sell them. Why is Mr. Van Elzen visiting those websites and creating spreadsheets listing them? It makes no sense to anyone but Mr. Van Elzen. Even if this judge wasn't a telemarketer patron saint at the start, does Mr. Van Elzen expect the judge to stick up for this illogical story?
Plaintiff reasserts that he did not click any button on AHS's website, never visited AHS's website, never submitted his contact information to AHS, and never requested information about home warranties from AHS, and that neither Plaintiff nor his IT vender deleted any portion of his browser history. Plaintiff also notes that the analysis of his computer revealed no evidence that he ever visited AHS's website or that he ever deleted any portion of his browser history.
Maybe this is all true, but if the judge wants to create a narrative so he can spank you, and judge's generally hate telemarketing lawsuits and the people who bring them anyway, Mr. Van Elzen just handed the judge a big stick to beat him with. And if the judge wanted to spank Mr. Van Elzen, the judge should have do so and left everyone else out of it.
The questions that arise from Plaintiff's visit with the IT vendor shortly before filing his suit and AHS's forensic analysis of his computer showing possible deletions from his browsing history and visits to websites offering similar products provide additional weight to AHS's suggestion that Plaintiff manufactured his claim.
But instead the judge went on to do as much damage to fellow TCPA plaintiffs as possible. The judge goes after written consent.
the TCPA generally prohibits companies such as AHS from sending text messages to consumers without the consumer's "prior express consent." 47 U.S.C. § 227(b)(1)(A). The regulation promulgated by the FCC in 2012 states that "prior express consent" means "prior express written consent" in the context of telemarketing and advertising texts. 47 C.F.R. § 64.1200(a)(2), (3) (italics added); In the Matter of Rules and Reguls. Implementing the TCPA of 1991, 27 FCC Rcd. 1830, 1831 (2012) (the 2012 Order). But that is not what the text of the statute says, and this court is not bound by the FCC's interpretation of the TCPA. See McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146, 149 (2025). Instead, the court is to "interpret the TCPA under ordinary principles of statutory interpretation, affording appropriate respect to the agency's interpretation."
The judge goes after serial TCPA filers:
The [Johansen] plaintiff had previously filed approximately 60 TCPA lawsuits and had developed what one district judge characterized as an "extensive and profitable history with lawsuits involving TCPA claims." . . .
The following needs to wake up the Johansen's and the Elzen's of the world because if and when telemarketers can get summary judgment when it isn't your IP address and it really isn't that hard for a telemarketer to fake an opt in with your correct name and email address, the stage is set for few TCPA plaintiffs to win in court. So you better be mindful of your telephone work and your investigation while building cases:
In granting the defendant's motion for summary judgment on the issue of consent despite the plaintiff's insistence that he had not submitted the internet request, the Johansen court noted that during the 26-minute conversation with the defendant's representatives after answering their telephone call, the plaintiff had initially expressed interest in $50,000 of life insurance coverage, answered detailed questions about his criminal and medical history, provided specific health information, did not object to the questions, and did not contend that the defendant lacked his consent to call him [Patron saint of telemarketing judges already want to use investigating the telemarketer against the plaintiff. Use good judgment in how and when you do it]. It was only after the representative asked him for his driver's license number that the plaintiff began asking for the representative's name, telephone number, and the insurance company offering the quote. When he stated that his number was on the Do Not Call list, denied he had provided the defendant consent to call him, and asked how the defendant had acquired his contact information, the call ended and the defendant placed the plaintiff on the company's Do Not Call list. The court rejected the plaintiff's argument that his denial that he had requested a quote, that the submission included an incorrect birthday and email address, the fact that the IP address associated with the submission was located in another state, and the possibility of overseas hackers or lead fraud was enough to preclude summary judgment in the defendant's favor.
This judge uses the situation to shift the burden on consent to Mr. Van Elzen and notice what the judge doesn't say - nowhere does the judge or AHS say [that I could find] that AHS doesn't hire and pay for affiliate marketers for opt in's on the AHS website [supposedly where this request for calls originated] and didn't pay for an opt in on this one.
The fact that an online form with Plaintiff's name and contact information was submitted to AHS is difficult to explain if Plaintiff did not directly or indirectly submit it. That the email address was incorrect and the request was for information a renter would not be seeking is not surprising if the submission was not a good faith request for information. An accurate phone number would be enough to ensure the contact needed to claim a TCPA violation, and an incorrect email can both throw off suspicion and prevent unwanted emails. Plaintiff vaguely speculates about "lead fraud," but it is difficult to see how and why someone would submit Plaintiff's contact information to AHS without his consent, given AHS's policy of not making "cold calls" and the procedures it has adopted to ensure compliance with the TCPA.
The judge goes after not proactively opting out:
A jury could view Plaintiff's thirteen filings in the last decade as indicating a strong distaste for being contacted without consent-a sentiment shared by Congress when it codified the TCPA, though, if true, it is hard to see why Plaintiff did not immediately opt out of AHS's communications.
But then sets in where the Courts can do the most damage - the TCPA safe harbor. On paper if judge wants to be a patron saint of telemarketing, the TCPA safe harbor can be easily abused. After all, what telemarketer of your choice can't claim to be doing all four of these steps?
According to the regulation implementing the safe harbor provision, a would-be violator can avoid liability if it can demonstrate that the violation is the result of error and that as part of its routine business practice, it implemented various procedures to avoid such errors. 47 C.F.R. § 64.1200(c)(2)(i). Those procedures include (1) "written procedures to comply with the national do-not-call rules;" (2) training of personnel on those procedures; (3) maintenance of a list of phone numbers that the entity cannot contact; (4) the use of "a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules; [there is a step five not relevant in today's telemarketing]
The Johansen court is the one that started this, and in that lawsuit Efinancial wasn't even a DNC list subscriber. It was a poor opinion but because the plaintiff's case was so crappy thank god they didn't appeal it and run the significant risk of making life bad for everyone in the ninth circuit.
AHS relies heavily on Johansen v. Efinancial LLC, No. 2:20-CV-01351-DGE, 2022 WL 168170 (W.D. Wash. Jan. 18, 2022), in which the court granted the defendant's motion for summary judgment under similar circumstances.
I predict that after this Elzen decision, we will see many more telemarketers who blatantly hire affiliate marketers to create fake opt ins and then come to court with this exact same story:
AHS contends that its routine business practice complies with these standards. As noted above, it has a written Telemarketing Do-Not-Call Policy that outlines procedures to comply with the National Do-Not-Call rules. The TCPA prohibits calls or texts to any consumer's telephone number listed in the DNC Registry unless that person gives prior express consent to receive such calls or texts. AHS's policy is to call or text only consumers who have given AHS such consent . . . AHS only made calls to persons it reasonably believed had given consent
If courts start saying that anything short of knowing an opt in is fake is a reasonable belief an opt in is valid, there will be titanic shift against TCPA plaintiffs. But perhaps you have a different conclusion? I pulled AHS's MSJ and supporting declaration so you can read through and draw your own conclusions.
And I pulled the Johansen decision as well.
Long story short, TCPA plaintiffs can't be dummies running around the internet looking at garbage websites. Keep VPNs completely off your computers and phones, don't delete internet browsing histories, and proactively offer up your devices and ISP records if accused of opting in. In my experience, had Mr. Van Elzen proactively offered up his devices, there was a good chance AHS would not have bothered to look. But looking like you don't want to have them examined is a sure way for the judge to move against you as Mr. Van Elzen found. And how you conduct your TCPA investigation matters, be smart about it.
Further reading:
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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.