Court Rules Against ‘Professional Plaintiff’ in TCPA Case

The Ninth Circuit Court of Appeals ruled in favor of lead generation company Leadpoint, Inc, and mortgage lender Reliance First Capital LLC in a Telephone Consumer Protection Act (TCPA) case. The plaintiff, described as a frequent TCPA litigant (aka “professional plaintiff”) in the court’s ruling, sued the companies claiming they violated the TCPA by sending him unsolicited text messages after he asked them not to contact him.

The court ruled that the plaintiff did not have a cause of action under the TCPA because the number that received the messages is not a residential phone number under the purview of the TCPA. Instead, the phone number in this case was obtained solely for court filings. The plaintiff characterizes the number as “not connected to financial accounts or social media accounts” and as not “serving as a gateway to other private information.” The plaintiff held a separate telephone number for personal use. The court stated that “Because Barton (plaintiff) uses the 718-area code number only for litigation purposes, a reasonable observer likely would not think that Barton has legitimate privacy concerns regarding that code number.”

The 718-area code number was listed on the National Do Not Call Registry. The Ninth Circuit held that while a phone number on the National Do Not Call Registry is presumed to be a residential one, that presumption can be rebutted by factors, including:

• How the plaintiff holds the phone number out to the public
• Whether the phone number is registered with the telephone company as a residential or business line
• How much the plaintiff uses the phone for business or employment
• Who pays for the phone bills
• Other factors bearing on how a reasonable observer would view the phone line

The two companies in question may have got a ruling in their favor in this case, although they likely spent time, money, and other valuable resources defending themselves. When placing calls where wrong party contacts are of concern, callers can help protect themselves by scrubbing against lists of known, frequent TCPA litigators to minimize risk in this area.

CompliancePoint can help your organization ensure its marketing campaigns are TCPA-compliant and more resilient to litigation from professional plaintiffs. Contact us at connect@compliancepoint.com to learn more.