So you might recall a while back I was in a tizzy because a repeat TCPA litigator was permitted to file suit over calls made to his mother’s phone.

The case was dismissed by the magistrate judge assigned to the case owing to a lack of allegation around vicarious liability—but not before the Court found Plaintiff had standing to sue for calls made to a phone line he didn’t subscribe to in a house where he didn’t live that were intended for somebody else.

Bleh.

Anyway the Plaintiff objected to the ruling and asked for leave to amend. The Defendant argued that leave to amend would be futile since the Magistrate Judge got it wrong on standing.

Ultimately the district court refused to grant leave to amend—meaning the case is dismissed forever—but backed a pickup truck over Defendant’s standing arguments before it did.

Specifically in Bank v. Gohealth, 19-CV-5459 (MKB) (CLP), 2021 U.S. Dist. LEXIS 89871 (E.D.N.Y. May 11, 2021) the district court held that Bank—a repeat TCPA litigator—had both Article III and prudential standing to bring the case. The Article III standing analysis is pretty straightforward—receipt of an unwanted call can cause harm (although it is weird that he can be harmed by a call he to someone else.) And the prudential standing analysis essentially turned on questions of fact—the court could not definitively say Plaintiff was not a “regular user” of his mom’s phone at the pleadings stage. Plus just because he files a bunch of lawsuits does not mean he meets the Stoops threshold of encouraging such suits.

Interestingly, the Court finds that only “called partys” have prudential standing to bring TCPA suits, which is about as dead a doctrine as exists in TCPAWorld. But everything seems to live on around here. Don’t get confused, however–very few cases view “called party” status as a standing issue. Most view “called party” as solely a question for assessing the individual who needs to provide consent.

Happy to discuss.