TCPA Is 'Poster Child for Lawsuit Abuse,' Says Class-Action Defendant

The Telephone Consumer Protection Act has become “the poster child for lawsuit abuse,” said defendant National Tax Advisory Service in its motion to dismiss (docket 1:23-cv-00679) a March TCPA class action in U.S. District Court for Colorado in Denver (see 2303160054).

The class action alleges the company calls "thousands of consumers and play[s] artificial or prerecorded voice messages marketing their services,” without obtaining express written consent from consumers before placing the artificial or prerecorded voice calls.

Statutory damages of $500-$1,500 per call or text message, “with no cap on aggregation,” produced an “unparalleled wave of putative class litigation,” including many claims that can’t withstand Rule 12 scrutiny, said the motion. It said plaintiff Chun Wu’s case against the company “is no different.” Rule 12 of the Federal Rules of Civil Procedure governs pretrial motions. Rule12(b)(6) specifically deals with motions to dismiss for failure to state a claim on which relief can be granted.

Centennial, Colorado, resident Wu’s attempt to force National Tax Advisory Service to litigate in Colorado “fails,” said the plaintiff, saying it’s a California company with “no contacts at all” in Colorado. It cited 10th Circuit rulings that district courts “should disregard personal jurisdiction allegations unless they are ‘well-pled.’” Plaintiff didn’t allege he was in Colorado when he received the calls or if National Tax targeted Colorado area codes, the motion said.

Even if National Tax could be forced to litigate in Colorado, Wu failed to state a claim under the TCPA, the company said. Plaintiff fails to allege messages National Tax allegedly sent him constitute ads, telephone solicitations or telemarketing within the meaning of the TCPA, it said. Defendant cited Suttles v. Facebook where the court said a text message invitation to visit a social media website “did not constitute a telephone solicitation because it did not encourage the sale of anything.”

Wu alleges National Tax’s messages said he could be cleared of prior tax debt by calling a phone number. The messages “do not advertise the ‘commercial availability or quality of any property goods, or services,’” the defendant said, citing Title 47 of the Code of Federal Regulations. The company also didn’t encourage him to invest in or rent property, goods or services, it said.

Wu also failed to allege the messages in question were sent to a residential telephone, “another prerequisite" of the do-not-call provision (DNC) of the TCPA, the defendant said. That Wu received the calls on his cellphone “renders the DNC Provision inapplicable,” said National Tax.

Plaintiff doesn’t plead basic facts about the “numerous” calls he allegedly received, or even if he ever answered one from National Tax, said the motion: “Instead he merely parrots the TCPA’s statutory language.” The complaint said messages said the plaintiff “could be cleared of any prior tax debt and that he should respond by calling 831-204-4718,” it said.