By: Jeffrey Backman, Esq. and Roy Taub, Esq.
In a recent decision, the court granted summary judgment to the defendant on the issue of willfulness in a TCPA suit arising from text messages sent to a telephone number made up by the individual opting-in to be contacted. The plaintiff received four texts addressed to “Brian,” and he knew they were not intended for him (since the plaintiff was not Brian). The defendant obtained evidence from the actual “Brian,” who admitted to completing the LendingTree web form and entered the plaintiff’s phone number (unknowingly, since “Brian” just made it up), consenting to be contacted at that telephone number. The plaintiff conceded that Brian was the intended recipient and that Brian’s entry of the number is how the defendant obtained it.
The court held there was no evidence the defendant knew, or should have known, that the telephone number did not belong to the plaintiff or even that the plaintiff was not the one who provided consent. The court concluded “nothing in the record could lead a reasonable fact-finder to conclude that Defendant knowingly or willfully sent messages to Plaintiff’s number,” and granted summary judgment to the defendant on treble damages for willful or knowing violations. The court emphasized that to obtain treble damages, the plaintiff needed to show the defendant should have known the actual recipient had not consented, which the record did not support.
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