The TCPA floats like a butterfly and stings like a bee.
Here’s the stinging part.
A caller is trapped in a TCPA suit despite claiming to have “incontrovertible evidence” of consent. Apparently–according to the Defendant– the Plaintiff consented to calls but went right ahead and sued the caller anyway.
The Defendant moved to dismiss the case–citing said incontrovertible evidence–only to be reminded that “evidence” doesn’t matter at the pleadings stage of a case. As every litigator knows, on a motion to dismiss a court looks only at the allegations of the complaint. So the caller basically just wasted its time bringing a motion that could never be granted.
Again, I know how frustrating this must sound to folks struggling to comply with the law only to be sued in a completely bogus case–if that is what happened here. But procedural rules of court are rules that must be followed. There are no end runs or exceptions-which is one of the reasons that litigation is so ridiculously expensive. (But you can make it slightly less expensive by not tying to take short cuts the rules don’t allow.)
There’s a second piece here as well. Some guy named Stone Sharp–I swear that’s his actual name–is personally sued in the case. Apparently Sharp, Stone was the employee of the company who had the misfortune of being called upon to send the texts at issue. And even though he was apparently just following orders, he is now facing a potentially life-altering TCPA judgment against him personally.
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