Asserting ‘Relevant Counterclaims’ Can Spare TCPA Defendants: Analysis

An Oct. 26 opinion by U.S. District Judge Noel Hillman for New Jersey in Camden demonstrates that a defendant may successfully defend a Telephone Consumer Protection Act action by “asserting relevant counterclaims,” said Faegrer Drinker in an analysis Monday. The judge granted default judgment to defendant Slack in its breach of contract counterclaim against a plaintiff who deliberately sent himself more than 1,500 text messages but represented that the texts were unsolicited and sent improperly by Slack, in violation of the TCPA. Slack alleged that plaintiff Gino D’Ottavio, whom it called a serial filer of TCPA lawsuits, abused a feature on Slack’s website by entering his own phone number and clicking a “send link” button in an effort to manufacture a complaint. Hillman’s opinion (docket 1:18-cv-09082) agreed with Slack that D’Ottavio “breached his contract” with Slack “and acted in bad faith by sending himself text links.” Hillman further found that Slack was injured by D’Ottavio breach “because it had to engage in litigation and incur related expenses,” said Faegrer Drinker. The decision “highlights the importance of scrutinizing a plaintiff’s allegations of harm. If early motion practice is not successful, defense counsel should explore plaintiff’s conduct in connection with alleged offending conduct via targeted discovery requests.” The law firm advised potential TCPA defendants to “review and revise their terms of use to ensure their terms prevent professional plaintiffs from trying to manufacture TCPA claims.”