In the matter of Cunningham v. USA Auto Protection, LLC, the professional litigant plaintiff alleged that USA Auto Protection made more than twenty telemarketing calls to his mobile telephone number without consent.
The defendant argued that the plaintiff – or someone acting on his behalf – completed an opt-in form on its website whereby he consented to receive telemarketing calls, and that he phoned the defendant more than once – inviting calls – in order to drive up the call count.
The defendant counterclaimed under Texas law. Its first counterclaim was for fraud. The second was for failing to disclose his actual preference not to receive telemarketing calls.
The plaintiff attempted to have both counterclaims dismissed, arguing that the defendant failed to properly allege who completed the opt-in form. The court disagreed, holding that the defendant was not required at the pleading stage to specify if it was the plaintiff or someone acting on his behalf that filled out the form, and that a professional TCPA litigant possesses a duty to opt-out of receiving telemarketing calls when he/she has knowledge that a third-party completed an opt-in form on his/her behalf and he/she intended to induce such calls for litigation purposes.
See the Order, here.
Takeaway: A professional TCPA plaintiff that manufactures claims may be susceptible to fraud-based counterclaims.
Richard B. Newman is an advertising practices attorney at Hinch Newman LLP.
Attorney advertising. Informational purposes only. Not legal advice.