DOUBLE-EDGED SWORD: Call Recording Sinks TCPA Defendant’s Claim of Consent

Call recordings are extremely highly effective proof within the battle in opposition to repeat participant litigants.

Very lately I had a case the place the Plaintiff alleged calls had been unsolicited. However once you listened to the primary name recording he very plainly expressed curiosity in a lending product earlier than chopping the decision quick, presumably particularly to fabricate future calls.

The decision recording was dynamite proof that helped resolve the case.

However name recordings can lower in opposition to you as properly–particularly when a Defendant is making an argument that’s not supported by the proof.

In Bennet v Veterans Help Pac, Inc. 2022 WL 1632553 (E.D. Tex. Might 23, 2022) the Defendant argued that the Plaintiff had consented to obtain the calls at challenge. However the Court docket listened to the decision recordings and disagreed:

“Bennett might be heard asking for any additional info to be mailed to her, and she or he offers the caller together with her bodily tackle. Bennett by no means signifies her assent to obtain additional cellphone calls, nor any curiosity in donating once more. Bennett’s cellphone data additionally present she solely acquired cellphone calls from the VA’s name heart. All in all, Bennett has carried her burden to indicate the shortage of proof relating to her prior specific consent. 

As such the Court docket granted abstract judgment IN FAVOR OF PLAINTIFF on the problem of consent.

Attention-grabbing, no?

However, the Court docket refused to grant Plaintiff’s movement on the problem of whether or not a prerecorded name was used, regardless of reviewing the recording:

“The Court has reviewed these recordings and notes their awkward, choppy quality—the calls did not have the natural flow of human conversation. In addition, the caller asks Bennett to respond to prompts with specific answers so that the caller could redirect Bennett accordingly, much like selecting a number on a cellphone’s keypad to redirect the call. [In response…] the VA cites a potential language barrier as the reason for any awkwardness or choppiness. While the Court suspects the calls were likely made using a pre-recorded voice, the Court must refrain from making any credibility determinations or weighing the evidence. Because a reasonable jury could find the calls were made without using a pre-recorded voice, the Court denies Bennett’s request for summary judgment on liability. “

So the caller narrowly avoids being rung up for utilizing a prerecorded name on the MSJ section. However discover–the Defendant is telling the Court docket the calls weren’t prerecorded and had been the end result of a language barrier. I believe they had been avatar calls–however I don’t know that.

If it seems that the Defendant was hiding the ball right here or deceptive the Court docket–not saying that’s what occurred, however if it did–it might be in massive bother when the details ultimately come to gentle.

In any occasion, take aways listed here are clear and apparent:

  1. Call recordings are nice proof. However they will typically damage you.

  2. Don’t make arguments in Court docket that the decision recordings don’t help. That may actually damage you.

Unrelated, do you know Large Legislation earnings had been up 20% final 12 months? 20%!  That’s loopy. Time to make the swap of us.

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