The Eastern District of Pennsylvania concluded that an admitted professional litigant stated a claim under the Telephone Consumer Protection Act when he received the defendant’s telemarketing calls on his cell phone. The determinative factor was lack of allegations and evidence that the plaintiff used the phone for the sole purpose of bringing TCPA lawsuits. A copy of the decision can be found here.
Plaintiff James Shelton operates a professional judgment recovery business and regularly files TCPA lawsuits. His website expressly states: “If you are reading this website, you are most likely a telemarketer that has illegally called my phone. You are going to be sued. I played along with your telemarketer script in order to find out who you really are. Put [Shelton’s cell number] on your do not call list. Hire a really good lawyer.” According to Shelton, he received an unsolicited marketing call from defendant National Gas & Electric on his cell phone and allowed the call to go to voicemail. The voicemail message was accompanied by a distinctive click and pause indicating that an Automatic Telephone Dialing System, or “ATDS,” was used. Shelton called back to obtain more information. He alleged that he received additional telemarketing calls from the same number and filed his umpteenth TCPA lawsuit.
National Gas & Electric moved to dismiss based on lack of constitutional standing and lack of prudential standing. As to the first argument, National Gas & Electric argued that Shelton’s claim was based on calls to a business number that the plaintiff used to drum up TCPA litigation. In support, National Gas & Electric relied on Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782 (W.D. Pa. 2016), in which the court dismissed TCPA claims by a professional plaintiff who used her cell phones for the sole purpose of filing TCPA lawsuits. The Eastern District of Pennsylvania disagreed and found that the facts and procedural posture in Stoops were distinguishable. Stoops was decided on a motion for summary judgment. By contrast, here the Court was constrained by Shelton’s allegations that the cell phone was the only one he owned (which suggested at least some degree of personal use) and that he did not purchase cell phones exclusively to originate TCPA claims.
National Gas & Electric also argued that Shelton lacked prudential standing because his interests did not fall within the zone of interests intended to be protected by the TCPA. Specifically, while the TCPA was enacted to protect consumers from annoyance and nuisance, Shelton hoped for and encouraged the marketing calls by dialing the caller back. The Court rejected this argument too. “The only evidence before the Court at this stage demonstrates that Plaintiff has requested in multiple forms that he not be targeted for solicitation—by registering his number on the Do Not Call Registry and stating on his website that he does not wish to receive such calls—and that he derives a profit when companies simultaneously ignore his requests and violate the TCPA. The fact that Plaintiff derives a profit from these lawsuits is exactly what Congress intended.” (citing 47 U.S.C. § 338(b)(3), (c)(5) providing statutory damages to plaintiffs in private actions under the TCPA).
This case is another example that, despite Spokeo, some courts refuse to recognize constitutional and prudential limitations and thereby encourage serial filings for profit by individuals who have not suffered any injury-in-fact.