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Serial Plaintiff Enjoys Another Ride on The TCPA Litigation Gravy Train

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Last week, a Pennsylvania Magistrate Judge recommended that Defendant’s motion to dismiss be denied in a putative class action filed against Oasis Power LLC dba Oasis Energy (“Oasis”), a retail energy services provider.  Abramson v. Oasis Power LLC, No. 2:18-cv-00479, 2018 U.S. Dist. LEXIS 129090 (W.D. Pa. July 31, 2018).

Abramson brought a class action suit against Oasis for allegedly making automated telemarketing calls to the phone numbers of Abramson and other putative class members, using an ATDS or predictive dialers.

On June 18, 2018, Oasis moved to dismiss Plaintiffs’ first amended complaint for lack of standing, and for failure to state a claim.

Oasis made a factual 12(b)(1) challenge to Abramson’s assertion of jurisdiction, arguing that Abramson lacked Article III standing because he did not suffer a “concrete” and “particularized” injury and therefore cannot establish an “injury in fact.” 

Oasis argued that Abramson is a “professional plaintiff who is in the business of bringing TCPA lawsuits” and has filed least 28 other actions across the country.  Oasis alleged that Abramson signed up as a customer, and purposely engaged with Oasis only to terminate the services several days later, with the clear aim of encouraging calls and generating litigation.  According to Oasis, Abramson “intentionally encourages calls to his cellular telephone number” just for the purposes of getting TCPA damages.  Therefore, Abramson does not have particularized and actual injury needed for Article III standing.

Oasis had relied on Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782, 800 (W.D. Pa. 2016), where the court dismissed plaintiff’s TCPA claim for lack of standing after finding out that plaintiff had bought cell phones solely for the purposes of receiving ATDS calls.  The Court determined that the plaintiff could not show an injury in fact because her only purpose in getting the phones was to use them to file TCPA lawsuits.  Therefore the calls were not a nuisance or an invasion of privacy.  Stoops was argued by none other than the Czar of TCPALand, Eric Troutman, who is one of the few who has been able to successfully argue and win on this issue.

Oasis argued that allowing the lawsuit to go forward would be to allow Abramson to use the TCPA as a “lawsuit-generating weapon to turn a profit.”  Oasis provided the court with a list of the 28 other lawsuits Abramson has filed, and listed cases where he had profited from his “vexatious behavior”; namely, Abramson was awarded $24,000, $6,000, and $13,500 in default judgments from three separate TCPA lawsuits in recent years.

The Court rejected Oasis’ lack of standing argument, stating that Plaintiffs had pled injury that was concrete and particularized.  The amended complaint pled nuisance and invasion of privacy, which the TCPA aims to prevent.  The alleged injury is concrete because the TCPA implicates interests similar to those associated with invasion of privacy, intrusion upon seclusion, and nuisance causes of action. Moreover, the alleged injury is particularized because Abramson claims injuries arising to him personally and as a result of phone calls placed directly to him.  This is sufficient for Article III Standing.

The Court stated that Abramson’s “prolific history of filing TCPA lawsuits” does not demonstrate a lack of injury in fact and becoming a professional plaintiff does not mean that plaintiff has forfeited his right to privacy and seclusion because the alleged calls were not truly unwanted.

The Court went further to say that even if Abramson was motivated by the TCPA damages provision just for the sake of profit or punishing telemarketers, his decision to sue did not negate his “otherwise valid privacy interest.”  Statutory damages, in the Court’s opinion, are designed to “appeal to plaintiffs’ self-interest and to direct that self-interest towards the public good,” which is private enforcement of the law.  To that effect, posing as an interested customer does not negate standing because, even if that were the case, Plaintiff would be doing something that Congress intended, which is to enforce the law.

 

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