Sometimes the easiest answer is the right one—even in TCPAWorld.
What’s the best defense to a TCPA claim? How about that you never called the Plaintiff to begin with.
That was the angle taken by the Defendant in Robinson v. Acg Processing, Civil Action No. 17-cv-02725-MSK-STV, 2019 U.S. Dist. LEXIS 124213 (D. Colo. July 25, 2019) and it prevailed– even though the Plaintiff submitted a declaration to the contrary.
In broad strokes: although Plaintiff contended the Defendant called him he had to admit at deposition that his cell phone records did not confirm that contention and nobody actually identified themselves as an agent of the Defendant in the phone calls. Plaintiff countered that the reason he has no record of calls from the Defendant was because of the use of spoofing technology but he lacked any direct evidence that was the case. So he came forward with nothing but speculation—no evidence. This was not good enough to survive summary judgment. As the court put it:
“Mr. Robinson offers no evidence in support of his claims and merely makes self-serving statements that are conclusory and indeed, refuted by the evidence. Such bare assertions are insufficient to raise a genuine issue of material fact in order to avoid entry of summary judgment.”
So there you have it TCPAWorld, although TCPA cases remain some of the most complex and intricate pieces of litigation out there, one must never lose sight of the simple stuff– like Plaintiff having the burden of introducing evidence that calls were actually made by the Defendant to begin with.
Mere speculation or “self-serving” declarations (aren’t all declarations self-serving?) are not sufficient where the records tell a different tale.